14 (2), April 2009

Journal of the Bar of Ireland • Volume 14 • Issue 2 • April 2009

Commercial Mediation Judicial Review and Prohibition

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Editorial Correspondence to: Eilis Brennan BL The Editor Bar Review Law Library Four Courts Dublin 7 DX 813154 Telephone: 353-1-817 5505 Fax: 353-1-872 0455 E: eilisebrennan@eircom.net Editor: Eilis Brennan BL Cover Illustration: Brian Gallagher T: 01 4973389 E: bdgallagher@eircom.net W: www.bdgart.com Typeset by Gough Typesetting Services, Dublin shane@goughtypesetting.ie T: 01 8727305

Volume 14, Issue 2, April 2009, ISSN 1339-3426

Contents 26

Putting the Chief Justice on Trial: Recent Developments in the law of prohibition.

Part 1.

Mícheál P. O’Higgins SC

32

Suspended sentences following the 2006 and 2007 Criminal Justice Acts Rebecca Smith BL and James B Dwyer BL

xxi

Legal Update: A Guide to Legal Developments from 27th January 2009 up to 18th March 2009

37

Mediation in Commercial Disputes

By Conor Feeney BL

42

Case Law on the Mental Health Act 2001 Part 2 Niall Nolan BL

47

Pupil Exchange in Paris Ann Campbell BL

48

Handling Stolen Property John Maher BL

Editorial Board: Donal O’Donnell SC, Chairman, Editorial Board Gerry Durcan SC Mary O’Toole SC Patrick Dillon Malone BL Conor Dignam BL Adele Murphy BL Brian Kennedy BL Vincent Browne BL Mark O’Connell BL Paul A. McDermott BL Tom O’Malley BL Patrick Leonard BL Paul McCarthy BL Des Mulhere Jeanne McDonagh Jerry Carroll Consultant Editors: Dermot Gleeson SC Patrick MacEntee SC Eoghan Fitzsimons SC Pat Hanratty SC James O’Reilly SC Gerard Hogan SC The Bar Review is published by Round Hall in association with The Bar Council of Ireland.

For all subscription queries contact: Round Hall Thomson Reuters (Professional) Ireland Limited 43 Fitzwilliam Place, Dublin 2 Telephone: + 353 1 662 5301 Fax: + 353 1 662 5302 E: info@roundhall.ie web: www.roundhall.ie Subscriptions: January 2009 to December 2009—6 issues Annual Subscription: €240.00 + VAT For all advertising queries contact: Sean Duffy, Direct line: + 44 20 7393 7602 E: sean.duffy@thomsonreuters.com Directories Unit. Sweet & Maxwell Telephone: + 44 20 7393 7000 Contributions published in this journal are not intended to, and do not represent, legal advice on the subject matter contained herein. This publication should not be used as a substitute for or as a supplement to, legal advice. The views expressed in the articles herein are the views of the contributing authors and do not represent the views or opinions of the Bar Review or the Bar Council.

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Putting the Chief Justice on Trial Recent Developments in the law of prohibition* Part 1.

Mícheál P. O’Higgins SC This article discusses recent caselaw dealing with the prohibition of criminal trials. The first part of this article discusses cases where the DPP reviews an earlier decision to prosecute and also analyses recent court decisions on the failure to preserve evidence and delay. The second part of this article will deal with repeat trials, abuse of process and the issue of disclosure.

Introduction Trinidad and Tobago, an independent republic in Her Majesty’s Commonwealth, was in 2006 caught in the grips of a constitutional storm. The Chief Magistrate heard a case in which Mr. Basdeo Panday, then leader of the opposition and a former Prime Minister, was charged with failure to disclose certain assets, contrary to the Integrity in Public Life Act, 1987. The Chief Magistrate convicted Mr. Panday and imposed a severe sentence of imprisonment. In May, 2006 the Chief Magistrate signed a statement to the effect that on three occasions, one before, one during and one after the Panday trial, the Chief Justice, Mr. Satnarine Sharma had endeavoured to influence the decision in favour of the defendant. The statement was sent to the Prime Minister. The Prime Minister expressed the opinion at a private meeting on the 5th of April, 2006 that the Chief Justice had endeavoured to influence the outcome of the Panday trial and that he should resign. The Attorney General and the Prime Minister urged the Chief Justice to resign rather than face the prospect of prosecution.

At about the time of the Panday trial, but before the decision to prosecute was given, the Chief Magistrate found himself embarrassed by a real property transaction from which he was extricated by the Attorney General, giving him (it was said) a motive to fall in with the wishes of the Attorney General. A detailed and colourful sequence of events ensued culminating with the Deputy DPP concluding that an offence was made out and a prosecution was then initiated by the police.

That is how it came to pass that in July, 2006, the Chief Justice of Trinidad and Tobago faced the imminent prospect of prosecution on a charge of attempting to pervert the course of justice. The State’s main witness was the Chief Magistrate, Sherman McNicholls. The Chief Justice’s defence involved an accusation of politically motivated interference in the prosecution process by the Prime Minister and the Attorney General; of politically inspired dishonesty by the Chief Magistrate, who was a subordinate but important figure Page 26

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in the judicial hierarchy; and of improper, politically inspired decision making and conduct by the Deputy Director, the Assistant Commissioner and the Commissioner of the police.

The Chief Justice elected to pursue a judicial review, seeking orders to halt his trial. He was initially successful, Jones J. at first instance granting leave to challenge the decision to prosecute. However, on appeal, the Court of Appeal set aside the grant of leave but granted the Chief Justice leave to appeal to the Judicial Committee of the Privy Council.

It was in that fraught and rather tense constitutional atmosphere that the relevant legal issues fell to be decided by the Privy Council. Measured against the comparatively minor political squabbles that occur in this jurisdiction, Chief Justice Sharma’s case presented constitutional issues of acute sensitivity and moment. The Privy Council was at pains to emphasise that the interests of the State of Trinidad and Tobago and of all those involved in the crisis required the Court to avoid forming any premature opinion as to where the truth may lie, but scrupulously to apply what were perceived to be the legal principles applicable to the situation.

The Board delivered two separate judgments. It unanimously affirmed the decision of the Court of Appeal and dismissed the Chief Justice’s appeal with costs. Their lordships were at pains to emphasise their decisions were made on legal grounds. They cast no aspersion on the integrity of the Chief Justice, whose innocence of the conduct alleged against him at that stage was to be presumed. As matters transpired, those were wise caveats.

The Privy Council held that, although a decision to prosecute was in principle susceptible to judicial review on the ground of interference with the prosecutor’s independent judgment, such relief would in practice be granted extremely rarely. In considering whether to grant leave for judicial review, the court had to be satisfied that the complaint could not adequately be resolved within the criminal process itself, either at the trial or by way of an application to stay the criminal proceedings as an abuse of process. The court held that the court’s power to stay criminal proceedings for an abuse of process should be interpreted widely enough to embrace an application challenging a decision to prosecute * This is an edited version of a paper delivered by the author at a Bar Council CPD Seminar on Judicial Review on Wednesday, the 3rd of December, 2008.

1 The Sharma case is reported at (2007) 1 WLR 780.

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on the ground that it was politically motivated or influenced.

The leave judge had erred in failing to evaluate the extent to which the appellant’s challenge could be resolved within the criminal process. Since, in the circumstances, all the issues could best be investigated and resolved in a single set of criminal proceedings, permission for judicial review ought not to have been granted and had rightly been set aside.

Leaving aside its colourful facts, the Sharma case is important for what it says about the jurisdiction to challenge a decision to prosecute, by way of judicial review. The thrust of the Privy Council’s decision – that judicial review of a decision to prosecute should be granted rarely, and only where the grievance can not be dealt with by the trial judge – has an echo in many of the recent pronouncements of the superior courts in this jurisdiction. A somewhat similar situation obtains in the United States and also closer to home in Northern Ireland . Accordingly, the starting point for any challenge to a decision to prosecute is that the Director of Public Prosecutions enjoys a quasi immunity in relation to decisions to bring charges.

Reviewing the DPP’s Change of Mind The leading case in this jurisdiction is Eviston v. DPP. Mrs. Eviston was driving from Kilkenny to Killarney and she had her three year old son strapped into a baby seat in the rear of the car. Near a crossroads her car was in collision with another car and the driver of that other car tragically died as a result of the collision.

The DPP decided no prosecution should be initiated and that decision was notified to the solicitor for the defence.

After this decision, the father of the deceased third party wrote a letter to the DPP asking him to reconsider the decision. That was done and the decision was reviewed. It was then decided to charge the applicant with dangerous driving causing death and the decision was then notified to the applicant. The applicant’s solicitor sought an explanation as to why the decision was reversed and then subsequently, the applicant sought an order from the High Court prohibiting her prosecution.

In the High Court Kearns J. held that for the DPP to remake his original decision and to reinstate a prosecution without any new fact, material or witness coming to light, was arbitrary and perverse, and he stopped the prosecution.

The DPP appealed Kearns J’s findings to the Supreme Court and that Court held, in dismissing the appeal, but in finding for the DPP on many of the broader issues, that the Director was entitled to review an earlier decision not to prosecute and to arrive at a different decision even in the absence of new evidence and was not obliged in either instance to give reasons for his decision.

Secondly, the Supreme Court held the stress caused to the applicant by the initiating of the prosecution following US v. Armstrong (1996) 517 US 456.

See R v. DPP ex-parte Kincaid, Unreported, High Court, Northern Ireland, 19th April, 2007.

For a discussion of the special position enjoyed by the DPP see State (McCormack) v. Curran [1987] ILRM 225, H v. DPP [1994] 2 ILRM 285 and Monaghan v. DPP, Unreported, High Court (Charleton J.) 14th March, 2007.

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the communication to her of a decision not to prosecute would not, of itself, afford her legal grounds for an injunction restraining the continuance of the prosecution.

There was no actual estoppel where the applicant had not acted to her detriment in reliance on the decision not to prosecute. Further, there could be no legitimate expectation in the absence of a departure, without prior notice, from a legitimately expected particular procedure.

Thirdly, and this is the ground upon which Mrs. Eviston was successful in holding her order of prohibition, the Court found that the DPP was required to apply fair procedures in the exercise of his statutory functions in the particular circumstances and that, on the facts of the particular case, the DPP had failed to accord the applicant fair procedures.

On that basis the prosecution should be stopped.

Giving the majority judgment of the Court Keane CJ. stated as follows: It was undoubtedly open to the respondent in this case, as in any other case, to review his earlier decision and to arrive at a different conclusion, even in the absence of any new evidence or any change of circumstances, other than the intervention of the family of the deceased. The distinguishing feature of this case is the communication by the respondent of a decision not to prosecute to the person concerned, followed by a reversal of that decision without any change of circumstance or any new evidence having come to light. In the light of the legal principles which I have earlier outlined, I am satisfied that the decision of the respondent was prima facie reviewable by the High Court on the ground that fair procedures had not been observed.

McGuinness J. also delivered a judgment in which she found that the particular circumstances of the case required fair procedures on the part of the DPP. Geoghegan J. agreed with the judgments of Keane CJ. and McGuinness J. Mr. Justice Frank Murphy gave a dissenting judgment in which he expressly disagreed with the proposition that the decision of the DPP is reviewable for want of fair procedures.

Murphy J. held that the DPP has not only the right, but the duty, in a proper case to alter his decision to prosecute or not to prosecute in a particular case and that that was so notwithstanding that his original decision may have been made public. The fact the change of mind may have a positive or negative result for an accused would not impinge on the validity of the decision nor impose any novel obligation on the DPP to justify it where, as here, the accused was not embarrassed in her defence.

From the point of view of pure principle, it is difficult to find a chink in Murphy J’s analysis in Eviston. It is difficult to see how the fact of the prosecutor’s change of mind could impact one way or the other the validity of the decision to prefer charges. Having said that, one could only feel sympathy for the applicant’s position.

Murphy J. delivered an interesting dissent.

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Post Eviston Cases Eviston was relied upon successfully in MQ v. Judges of the Northern Circuit and the DPP , LON v. DPP and Keane & Keane v. DPP . In LON, the interval of time between the two decisions was 13 years. In MQ, the interval was 4 and a half years. The delay issue loomed large in both cases. In MQ, McKechnie J. identified two additional features in that case, beyond the facts of Eviston, which favoured the applicant.

First, the DPP’s decision to proffer charges followed what was in effect a second review rather than a single original view.

McKechnie J. doubted whether the DPP’s review procedure as set out in the Director’s Annual Report of 1998 envisaged a second review. Secondly, McKechnie J. emphasised the much greater period of time which had elapsed between the communication of the decision not to prosecute and the subsequent decision to prosecute.

Similar exceptional circumstances arose in LON, leading McMenamin J. to conclude that case came within the category of exceptional cases envisaged by Eviston where because of the nature of the communication and overall conduct, an issue of fair procedures arose, and that on the facts the prosecution should be stopped.

Similarly in Keane & Keane v. DPP, Hanna J. granted an order of prohibition in circumstances where the DPP initially decided not to prosecute and then changed his mind, but the initial decision was communicated to the defence and it was never suggested the decision might be revisited. The case concerned a criminal prosecution against the owners of a rented dwelling. The tenants of the dwelling had died in their sleep from inhaling fumes from an unserviced boiler situate in the house. The case is a salutary lesson to the owners of rented property.

On the other side of the coin, prohibition was refused by Peart J. in Hobson v. DPP10. Whilst that case is distinguishable on the basis of the court’s finding that fresh evidence emerged in between the initial decision not to prosecute and the subsequent decision to charge the applicant, the case is also noteworthy in the light of Peart J’s observation that: “…since the Eviston case it has become public knowledge that the respondent may review decisions made by him, and that the applicant cannot successfully complain that the respondent failed to indicate when he made his first decision that he was entitled to review and alter that decision.”

Whilst lawyers may well be aware of the possibility of review, it is by no means certain that members of the public are.

In Carlin v. DPP11, the applicant sought an order of prohibition on an Eviston type ground as well. He argued that where there was a communicated and uncaveated decision not to prosecute, the DPP could not as a matter of fair procedures go back on that decision. On the facts of that case, Murphy

10 11

Unreported, High Court (McKechnie J.), 14th November, 2003.

Unreported, High Court (McMenamin J.), 1st of March, 2006.

Unreported, High Court (Hanna J.) 10th July, 2008.

Unreported, High Court (Hanna J.), 10th July, 2008.

[2006] 4 IR 239.

Ex-tempore judgment of the High Court (Murphy J.), 25th February, 2008.

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J. rejected that contention, holding that the fair procedures to be applied were not those applicable to a court and that the applicant had failed to establish that there was a real or serious risk that he could not obtain a fair trial.

Bringing matters right up to date, the DPP was restrained from prosecuting an accused person on a rape charge in GE v. DPP12. In that case, the complainant and the applicant met outside a disco in Wexford in February, 2003. A sexual encounter allegedly took place a short time later in a van in the centre of Wexford. The applicant had borrowed the keys to the van from a friend and both he and the complainant walked to the van where it was alleged some kissing developed into a more intimate event which involved the removal of the complainant’s clothing and also an attempt at full penetrative intercourse by the applicant. The complainant subsequently alleged that the applicant had raped her, whereas at all times the applicant maintained that any sexual contact was consensual in nature. The applicant was aged 20 on the night in question and the complainant was just short of her 17th birthday. By summons dated February, 2004, the applicant was charged with attempted unlawful carnal knowledge contrary to s.2 (2) of the Criminal Law (Amendment) Act, 1935 as amended by s.13 of the Criminal Law Act, 1997. The maximum sentence following conviction for this offence is 2 years. The defence were informed by an Inspector that the DPP had directed summary disposal of the charge if the applicant were to plead guilty. However, the applicant elected for trial on indictment. The case first came before the Circuit Criminal Court in April, 2005 and thereafter was adjourned from time to time pending the judgment of the Supreme Court on the constitutionality of s.1 (1) of the Criminal Law (Amendment) Act, 1935 in the case of CC v.

Ireland, the AG and the DPP13. The applicant was given bail throughout this period.

In May, 2006, the Supreme Court delivered judgment in the CC case in the course of which s.1 (1) of the Criminal Law (Amendment) Act, 1935 was declared unconstitutional.

In the aftermath of that decision, a number of Article 40 applications were brought by persons in custody on foot of prosecutions brought pursuant to the struck down legislation.

Subsequently the Supreme Court gave judgment in the so called A case: A v. Governor of Arbourhill Prison14.

On the 3rd of October, 2006 a nolle prosequi was entered in respect of the s.2 (2) charge. A week later on the 10th of October, 2006 the applicant was re-arrested and charged with rape arising out of the same event. Obviously, the maximum sentence following conviction for this offence is imprisonment for life. The applicant brought judicial review proceedings seeking to restrain the DPP from proceeding further with the rape charge.

Having lost in the High Court, the applicant appealed to the Supreme Court and argued that the trial judge had applied the wrong test. It was argued the test was not to determine whether or not an unavoidably unfair trial might take place but rather to enquire whether the decision of the respondent to charge the applicant with attempted unlawful carnal knowledge, then enter a nolle prosequi and subsequently charge 12 Unreported, Supreme Court, 30th October, 2008.

13 [2006] 4 IR 1.

14 [2006] 4 IR 88.

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the applicant with rape, was a breach of fair procedures to such a degree that the prosecution should be restrained. It was argued that the case was analogous to Eviston.

Giving the judgment of the Court, Kearns J. stated as follows: “The substitution in the instant case was akin to the withdrawal of a Road Traffic Act prosecution for driving through a red light and the substitution instead of a charge of dangerous driving causing death.

In current parlance, the “disconnect” between the original charge and the substituted charge is of such an order as to put the applicant in a far worse position than he was in under the original charge.

I would emphasise that this is not a case where ongoing investigations have yielded up further information or evidence which justifies the laying of further charges in addition to a preliminary charge. That is quite a different situation and not one addressed by this judgment.”

Interestingly, the Supreme Court would apparently not have intervened if the DPP had preferred an alternative charge, of a less serious nature. In the course of the appeal, the Supreme Court enquired if the DPP had considered availing of the Criminal Law (Sexual Offences), Act, 2006 to prosecute the applicant. Section 3 of that Act creates the new offence of defilement of a child under the age of 17 years and provides that, in the case of an attempt to engage in a sexual act with a child under 17 years, a person may be liable on conviction to imprisonment for a term not exceeding 2 years. That Act was introduced in response to the CC case and provides for a defence of honest mistake as to the age of the child, but it is otherwise similar to the statutory rape offence which preceded it. Counsel for the DPP responded that the Act of 2006 created a new offence and that it was not intended to have retrospective effect.

The Supreme Court were undoubtedly influenced by the DPP’s candid acknowledgement that the Director’s office was firmly of the view initially that a rape charge against the applicant was not warranted and would not succeed. That fact featured heavily in the case.

From the point of view of pure legal principle, however, it is difficult to identify a judicial review ground in the Court’s decision. The Court appeared to be of the view that it was perfectly alright for the DPP to substitute a new charge altogether, even in the absence of fresh evidence or any change of circumstance, but that what was objectionable, and which led to an order of prohibition being granted, was the “ramping up” of the charge from the statutory rape offence to the profoundly serious charge of rape, potentially carrying a tariff of life imprisonment.

Whilst the facts in GE were unusual, it is submitted that the approach of the Supreme Court in the GE case is illuminating. From the point of view of the law on challenging decisions to prosecute, the decision represents a significant advance on the principles in Eviston. As the Court itself noted in GE15, this was not a case (unlike Eviston) in which a decision not to prosecute for any offence had been communicated 15 See p.10 of the unreported judgment.

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to the applicant followed by a reversal of that decision. In GE, while a nolle prosequi was entered in the Circuit Court in respect of the charge of unlawful carnal knowledge, it was never contended on behalf of the applicant that he believed or was led to believe that any prospect of a criminal conviction arising out of the incident in County Wexford was thereby at an end. The applicant was well aware that his own particular case had been adjourned from time to time to await the full outcome of CC, and he must have been advised of the possibility that a further charge was coming down the tracks. And yet, the Supreme Court decided to intervene and prevent the DPP from proceeding with the charge which he, in the exercise of his prosecutorial discretion, had decided should be brought.

Commenting upon the Eviston decision, Kearns J. noted that: “(The Eviston case) was thus determined on ‘fair procedures’ grounds rather than on grounds of abuse of process, this Court taking the view that there was a disposition evident on the part of the Director to a particular prosecution which had the consequence if not the intent to avoid or circumvent due process.

Clearly courts must intervene where circumstances of this nature arise. This was made very clear in the judgment of Finlay P. in State (O’ Callaghan) v. O’ hUadhaigh [1977] 1 I.R. 42.” 16 From the point of view of practitioners seeking to advise their clients, particular guidance can be taken from the above extract. Even if it might be difficult to locate an accused’s grievance within a recognisable judicial review box, it will be worthwhile seeking prohibition if the accused is able to demonstrate the DPP’s decision had the effect of circumventing fair procedures, even if that consequence was not intended.

Applications to Restrain a Trial Moving away from challenges to the prosecutorial decision itself, over the past decade and a half a large number of applications have come before the Irish Courts in which accused persons have sought to prevent their criminal trial from taking place, usually on the basis of a claim they cannot get a fair trial. There have been three main categories of cases brought: delay cases, lost evidence or Braddish cases and prejudicial media coverage cases.

Of course the category of cases in which prohibition can be sought is not closed. Other types of challenges can be initiated, for instance prohibition actions in the context of multiple or repeat trials17 and abuse of process applications18, which will be discussed in part 2 of this article. The so-called “lost evidence” and delay cases have also sparked a number of prohibition applications, and given rise to much caselaw in the area.

16 P.8 of the Supreme Court’s judgment in GE. 17 DS v. DPP, Unreported, Supreme Court, 10th June, 2008.

18 e.g. Ryan v. Director of Public Prosecutions and State (O’Callaghan) v.

O’hUadhaigh (1977) IR 42.

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(i) An applicant must engage with the prosecution case, that is he must identify in clear-cut terms, by reference to the prosecution case set out in the book of evidence, how the loss of the evidence concerned has impaired his ability to defend the charges. He must show that a particular line of defence has been lost to him, or that his ability to contest the charges has been irretrievably damaged. (Scully v. DPP29 and more recently Perry v. Judges of the Circuit Court and the DPP30). (ii) Prohibition will not be granted where the applicant can, by alternative means (other than by recourse to the lost evidence in question) make the point in his defence that he wishes to make (McFarlane v. Director of Public Prosecutions31 and PH v. DPP32). (iii) It is not enough for the applicant to identify a possible area of difficulty, said to arise on foot of the lost evidence. He must show that, because of the loss of the evidence, there is now a real risk of an unfair trial. (DC v. DPP33, Braddish v. DPP34, Z v. DPP35 and D v. DPP36). (iv) To succeed in having a prosecution prohibited, an applicant must do more than merely invoke a remote, fanciful or theoretical possibility that exculpatory evidence at one time existed. He or she must establish a real risk of an unfair trial.

(Braddish v. DPP 37and Scully v. DPP38). (v) The threshold that an applicant must meet is a high one. Such an application may only succeed in exceptional circumstances. (Z v. DPP39 and DC v. DPP40) (vi) In general, prohibition will not be necessary as the trial judge maintains at all times the duty to ensure due process and a fair trial. It should be assumed that the trial judge will conduct the proceedings fairly, and will give all necessary rulings and directions to ensure a fair trial. (DC v. DPP41 and Blanchfield v. Hartnett42 and Perry v.

DPP43). (vii) In general, eve of trial applications are to be deprecated. Unexplained delays in issuing proceedings may result in applications being refused in limine. An applicant’s delay will be relevant not just to the issue of compliance with Order 84 Rule 21 of the RSCI, but also

Braddish Diluted Lost evidence cases cover situations such as where gardai fail to preserve video evidence of a crime being committed, or fail to retain for inspection by the defence engineer the motor car involved in the crash from which charges have emerged.

The thrust of recent pronouncements, particularly from the Supreme Court, has been to discourage Braddish19 type applications, largely on the basis that an applicant’s grievance can be accommodated at the court of trial. An analysis of recent cases shows a number of recurring themes, the effect of which has been to narrow considerably the parameters for bringing judicial review.

Delay On the delay side as well, cases such as H v. DPP20, PM v. DPP21, McFarlane (No. 2)22 and Devoy v. DPP23 illustrate the extent to which the delay jurisdiction has been emasculated. In some of those cases, concerns have been expressed about the dangers of bringing unmeritorious and tactical applications that have more to do with tripping up prosecutions than a genuine desire to vindicate an accused’s entitlement to a trial in due course of law.24 Even in summary cases, the delay jurisdiction has been impacted. Recently the Supreme Court decided that Arthurs v. DPP25 which had for years guided district judges and litigants alike as to the level of tolerable delay for summary prosecutions, was no longer to be followed, preferring instead the balancing test evident in PM v. DPP26. In Cormack v. DPP and Farrell v. DPP,27 the Supreme Court reviewed the law on delay as it applied to proceedings in the District Court. The court found there was no basis for applying a separate legal regime to summary prosecutions than that which arises in the case of indictable offences. However, the Court emphasised that delay will more rapidly be characterised as blameworthy and intolerable where summary proceedings are concerned.

The Court expressly disapproved of the judgment in Arthurs, on the basis that that judgment did not set out any criteria to determine what might constitute an exorbitant delay in the context of the prosecution of summary offences. The Court should not act as legislator to frame a subjective limitation period for the prosecution of criminal offences, even offences of a summary nature, and should in every case where delay is established conduct the balancing exercise indicated in Barker v. Wingo28.

Similarly on the Braddish front, the increasing number of cases that have come before the Court have led to the emergence of a number of themes, usually invoked with a view to turning down an accused’s application to stop his trial: 19 20 21 22 23 24 25 26 27 28

[2001] 3 IR 127.

[1994] 2 I.L.R.M. 285 [2006] 3 IR 174 Unreported, Supreme Court, 5th of March, 2008.

Unreported, Supreme Court, 7th April, 2008.

See the observations of Fennelly J. in Dunne v. DPP [2002] 2 IR 305 and Hardiman J. in Scully v. DPP [2005] 1 IR 242.

[2000] 2 ILRM 363.

[2006] 3 IR 174.

Unreported, Supreme Court, 2nd December, 2008.

1972 407 US 514

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29 30 31 32 33 34 35 36 37 38 39 40 41 42 43

[2005] 1 IR 242.

Unreported, Supreme Court, Fennelly J., 28th October, 2008.

[2007] 1 IR 134.

Unreported, Supreme Court, 29th January, 2007.

[2005] 4 IR 281.

[2001] 3 IR 127.

[1994] 2 IR 476.

[1994] 2 IR 465.

[2001] 3 IR 127.

[2005] 1 IR 242.

[1994] 2 IR 476.

[2005] 4 IR 281.

[2005] 4 IR 281.

[2002] 3 IR 207.

Unreported, Supreme Court, 28th October, 2008.

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for what it says about an applicant’s true view of the lost opportunity to obtain the missing evidence in issue (Scully v. DPP44 and Bowes v.

DPP45).

(viii) If the evidence no longer exists, the reason for its destruction is part of the matrix of the facts, but it is not a determinative factor in the test to be applied by the court.

The relevant legal principles were considered in two cases before the Supreme Court recently in Savage v. DPP46 and Ludlow v. DPP47. In Ludlow Denham J. summarised the relevant principles as follows:

These principles are subject to the fundamental test to be applied by the court, that being whether there is a real risk of an unavoidable unfair trial, as described by Finlay C.J. in Z. v. Director of Public Prosecutions [1994] 2 I.R. 476 at p. 506, where she endorsed the view set out in D. v. The Director of Public Prosecutions [1994] 2 I.R. 465 that the onus of proof is on the applicant to establish there is such a real risk.

(i) Each case requires to be determined on its own particular circumstances. (ii) It is the duty of the Court to protect due process. (iii) It is the duty of An Garda Síochána to preserve and disclose material evidence having a potential bearing on the issue of guilt or innocence, as far as is necessary and practicable. (iv) The duty to preserve and disclose, as qualified

by Lynch J. in Murphy v. D.P.P., cannot be defined precisely as it is dependent on all the circumstances of the case. (v) The duty does not require An Garda Síochána to engage in disproportionate commitment of manpower and resources and must be interpreted in a fair and reasonable manner on the facts of the particular case. (vi) In the alternative to keeping large physical objects as evidence, such as motor vehicles, it may be reasonable in certain circumstances for the Garda to have a forensic report on the object. (vii) However, an accused should, in general, be given an opportunity to examine or have examined such evidence.

44 45 46 47

Chief Justice Sharma One man who didn’t have to worry about an unfair trial was the Chief Justice of Trinidad and Tobago, with whom we started. As it turned out, things ended happily for the Chief Justice. His trial was due to start on the 5th of March, 2007 in the port of Spain, Trinidad. Before the State’s main witness in the case (Chief Magistrate Sherman McNicholls) could take the oath, prosecution senior counsel rose to his feet and informed the court the case was being withdrawn. A startled senior magistrate, Lianne Lee Kim then told the Chief Justice he was discharged. In an immediate reaction to the court case, the Criminal Bar Association for Trinidad and Tobago called for the immediate resignation of McNicholls and the immediate reinstatement of the Chief Justice. The Deputy Director of Public Prosecutions, Carle Browne-Antoine told reporters that a statement would be issued soon. ■ Part 2 of this article will be published in the next edition of the Bar Review.

[2005] 1 IR 242.

[2003] 2 IR 25.

Unreported, Supreme Court, 3rd July, 2008.

Unreported, Supreme Court, 31st July, 2008.

Bar Council Scholarship

David Nolan SC presents the Bar Council Scholarship to Danielly Gaughran.

This award is presented annually to students from the local area to fund their continuing education.

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Suspended sentences following the 2006 and 2007 Criminal Justice Acts Rebecca Smith BL and James B Dwyer BL Introduction Section 99 of the Criminal Justice Act 2006 placed suspended sentences on a statutory footing for the first time. In many respects, the section restates existing principles but there are some innovations worthy of comment. Firstly it provides for an automatic procedure for the revocation of a sentence when there has been a conviction recorded in another court.

Secondly there is now a discretion vested in the sentencing court whether or not to revoke the suspended sentence.

Thirdly a court can now partially revoke the suspended sentence. Fourthly the section requires that the sentence for the later offence must be consecutive to the revoked suspended sentence. Finally the Act also introduced formal notification procedures and gave the court the power to issue a bench warrant in the event of a non-attendance at an application to revoke.

While formalising the procedure is welcomed, there have been a number of practical difficulties encountered by practitioners in the operation of the section. Amendments made by s.60 of the Criminal Justice Act 2007 did little to remedy these difficulties. This article seeks to set out the general principles governing suspended sentences and examine its current application under the new legislation and the difficulties which have arisen since it transformed into a complicated statutory procedure.

Development of the suspended sentence Under the common law, a suspended sentence could be imposed in any court for any offence with the exception of mandatory sentences to be served. As a sentencing tool, it is of some antiquity and has its roots in the Irish common law of the nineteenth century. Thus in In re Robert McIlhagga, Ó Dálaigh C.J. noted that the suspended sentence had been long recognised as “a valid and proper form of sentence”.

Section 50 of the Criminal Justice Bill 1967 did propose the introduction of the suspended fine or sentence of imprisonment.

However the bill was never enacted.

See the comments of Finnegan J. in People (DPP) v Gordon Ryan [2009] IECCA 21; unreported Court of Criminal Appeal (Finnegan, Herbert and De Valera JJ.), March 20, 2009. e.g., the imposition of a life sentence for murder. This would also seem to include the new mandatory sentencing provisions under the Criminal Justice Act 2007, discussed below.

For a more detailed look at the history of the suspended sentences in Ireland, see Osborough, “A Damocles Sword Guaranteed Irish” (1982) Irish Jurist 221. See also O’Malley, Sentencing Law and Practice (2nd ed., Round Hall Sweet & Maxwell, 2006), chapter 22.

Unreported Supreme Court (Ó Dálaigh C.J., Walsh, Budd, FitzGerald and McLoughlin JJ.) July 29, 1971.

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The guiding principle governing the suspended sentence is that it should not be imposed unless the sentencing court is satisfied that a custodial sentence is merited in the first place.

The sentencing judge should consider whether or not given the particular circumstances of the offence and the offender a custodial sentence is justified and, if so, what length is appropriate. Only then does the judge go on to consider whether there are reasons which would justify suspending the sentence imposed.

During the 1980s and 1990s, the concept of the ‘reviewable sentence’ gained currency. A court would pass sentence and set a date in the future for review, with the power to suspend the balance of the sentence on that future date. Commonly known as a ‘Butler Order’, the practice was abolished by the Supreme Court as a sentencing procedure in People (DPP) v Finn.

General principles governing suspended sentences The following general principles can be derived from the case law regarding suspended sentences: • A suspended sentence is to be treated in the first instance as a recognition that an offence has been committed which would warrant an immediate custodial sentence. There is no limit on the length of the sentence that may be suspended.

• A court should not increase the ter m of imprisonment for the sole reason that the term is to be suspended.

• A court can suspend a sentence for a longer period than the sentence actually imposed but there should be special circumstances for so doing.10 • If a sentence is suspended or partially suspended on appeal by the Court of Criminal Appeal, any application for revocation should be brought

Originating from the decision of Butler J. in the case of the State (Woods) v Attorney General [1969] I.R. 385.

[2001] 2 I.R. 25. Although there remains a statutory provision for review of sentences passed under the Misuse of Drugs Act (ss.27(3)(g) and 27(3)(h) of the 1977 Act as amended) which survived the Finn decision.

Moore v Judge Brady and DPP [2006] IEHC 434; unreported, High Court, (Feeney J.), November 16, 2006.

People (DPP) v Carl Loving [2006] 3 I.R. 355.

10 McCarthy v Judge Brady and DPP [2007] IEHC 261; unreported, High Court (De Valera J.), July 30, 2007.

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• •

• • •

before the court of trial and not to the Court of Criminal Appeal.11 There is power to suspend consecutive sentences imposed pursuant to s.11 of the Criminal Justice Act 1984.12 Where a part-suspended sentence is imposed, for the purposes of calculating remission or temporary release, the relevant period is the actual time spent in custody.13 A suspended sentence can be imposed in respect of presumptive mandatory minimum sentences in certain circumstances.14 When imposing a condition attached to the suspended sentence, it must be one which is concrete and discrete.15 If the judge who sentenced the offender in the original sentence has retired or died, then another judge of the same court sitting in the same area may deal with the application.16

Section 99 of the Criminal Justice Act 2006 Part 10 of the Criminal Justice Act 2006 commenced on October 2nd 2006.17 It was later amended by s.60 of the Criminal Justice Act 2007 which came into effect on May 18th 2007.18 Sections 99(1) and (2) provide a statutory basis for the imposition of suspended sentences and provide thereof: “(1) Where a person is sentenced to a term of imprisonment (other than a mandatory term of imprisonment) by a court in respect of an offence, that court may make an order suspending the 11 People (A.G.) v Grimes [1955] I.R. 315.

12 People (DPP) v Dennigan, unreported, Court of Criminal Appeal (Hederman J.), November 27, 1989, People (DPP) v Farrell [1992] 2 I.R. 32.

13 State (Beirnes) v Governor of the Curragh Military Detention Barracks, unreported, High Court (Carroll J.), February 23, 1982, O’Brien v Governor Of Limerick Prison [1997] 2 I.L.R.M. 349.

14 People (DPP) v McGinty [2007] 1 I.R. 633. In that case the Court of Criminal Appeal upheld a five year sentence wholly suspended in respect of a charge contrary to Section 15A of the Misuse of Drugs Act (as amended) stating that where there were special reasons of a substantial nature and wholly exceptional circumstances, the imposition of a suspended sentence might be appropriate in the interests of justice. By contrast, under some of the new mandatory sentencing regimes pursuant to the Criminal Justice Act 2007, there is specific reference in certain sections which state that in imposing mandatory sentencing the sentence is referred to as “served”. This implies that the mandatory sentence cannot be suspended.

15 In People (DPP) v Alexiou [2003] 3 I.R.513, a condition compelling a person to leave the state was held to be a valid condition of a suspended sentence which was within the discretion of the trial judge to impose.

16 In People (DPP) v Stewart unreported, Court of Criminal Appeal (Hardiman, O’Sullivan and Herbert JJ.), January 12, 2004, the court upheld the Circuit Court judge’s revocation of suspended sentences when she was not the presiding judge in the original sentence hearing. The court stated that it was “perfectly clear that she had jurisdiction to do this”. This is also reflected in the wording of s.99(10).

17 commenced by S.I. 390 of 2006.

18 commenced by S.I. 236 of 2007. The explanatory memorandum to the 2007 Act describes s.60 as making amendments that are “of a technical nature and are aimed at improving the operation of the section”.

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execution of the sentence in whole or in part, subject to the person entering into a recognisance to comply with the conditions of, or imposed in relation to, the order.

(2)It shall be a condition of an order under subsection (1) that the person in respect of whom the order is made keep the peace and be of good behaviour during(a) The period of suspension of the sentence concerned, or (b) in the case of an order that suspends the sentence in part only, the period of imprisonment and the period of suspension of the sentence concerned, And that condition shall be specified in the order concerned.”

Section 99 goes on to provide that a court can impose any condition it sees fit and appropriate to the nature of the offence and what it considers may reduce the likelihood of the person committing another offence.19 The court may also make an order ordering the person to co-operate with the Probation Service or undergo treatment, therapy, education for their rehabilitation, but this must be specified in the recognisance.20 Interestingly the Probation Service can apply to the court that imposed the sentence to apply for conditions to be imposed.21 When a suspended sentence is imposed, a copy order shall be given to An Garda Síochána, the governor of the relevant place of detention (if partly suspended) and to the Probation Service if relevant conditions apply.22 The revocation of suspended sentences under the 2006 Act Section 99(9) of the 2006 Act (as amended by s.60 of the 2007 Act) states that where a person is convicted of an offence during the period of suspension the court shall remand the person back to the court that imposed the suspended sentence in custody or on bail before imposing a sentence.23 Section 99(9) as amended provides: “(9) Where a person to whom an order under subsection (1) applies is, during the period of suspension of the sentence concerned, convicted of an offence, the court before which proceedings for the offences were brought, shall before imposing sentence for that offence, remand the person in custody or on bail to the next sitting of the court that made that order.”

19 s.99(3).

20 ss.99(4) and 99(5).

21 s.99(6). Previously it had been common practice for sentencing judges to purport to give explicit power to re-enter to the Probation Service in their orders.

22 ss.99(7) and 99(8).

23 Section 99(9) of the 2006 Act originally provided for the remand of a defendant back to the court that imposed the suspended sentence after sentence was imposed. This inevitably caused problems as judges were in a difficult position regarding sentence in that they could not second guess whether or not the original sentencing judge would revoke the suspended sentence or not.

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Section 99(10) states that the court who imposed the suspended sentence shall revoke the sentence unless it considers it unjust to do so. Section 60 of the Criminal Justice Act 2007 amended this to insert a new s.99(10A) which provides that when a person has been dealt with in the court that imposed the suspended sentence (whether it is revoked or not) that court shall then remand the person back to the court for sentencing for the subsequent offence.

The section provides for a stand-alone right of appeal against the order of revocation.24 A garda, a governor or a probation officer can apply to the court to fix a date for the application to revoke if he has reasonable grounds for believing the defendant is in breach.25 This must be in writing and on notice.26 If the person fails to appear for the hearing, the court may issue a bench warrant for his arrest.27 At the hearing, if the court is satisfied that the person has contravened a condition of the order, it may revoke the order, unless it considers that in all of the circumstances of the case it would be unjust to do so.28 The section does not interfere with temporary release29 or certain provisions in the Misuse of Drugs Acts.30 Discretion of the court in revocation Pursuant to ss. 99(10) and 99(17), discretion is now vested in the court to not revoke the suspended sentence where to so do would be “unjust in all the circumstances of the case”. Otherwise it must revoke. With common law revocations, a breach of the suspended sentence which was not de minimus, required revocation with no discretion inhering in the court.31 Furthermore now the court may revoke the sentence imposed in part only. This was not permissible under the common law regime. A court can now order a person to serve the entire sentence of imprisonment originally imposed “or such part of the sentence as the court considers just having regard to all of the circumstances of the case”, less any period already served for the original offence:

24 s.99(12).

25 ss.99(13) and 99(14).

26 ss.99(15) and 99(18). The written notice must be either delivered in person, left at the address where the defendant ordinarily resides or sent by ordinary registered pre-paid post.

27 s.99(16).

28 s.99(17). Discussed below in more detail.

29 Section 99(19) of the Act states that the section shall not affect the operation of s.2 of the Criminal Justice Act 1960 which allows the Minister to make rules for the temporary release of prisoners.

30 s.99(19)(b).

31 People (DPP) v Stewart unreported Court of Criminal Appeal (Hardiman, O’Sullivan and Herbert JJ.) January 12, 2004. Also, in People (DPP) v Murray unreported Court of Criminal Appeal (McCracken, Kearns and Ó Caoimh JJ.), March 18, 2003, the sentencing judge released the applicant on certain conditions after a term in prison for the balance of a seven year sentence, under the old review system. The applicant had breached two of the conditions and when the matter was re-entered before the sentencing judge, she held that the breach was not trivial and the applicant should serve the remainder of the sentence. On appeal, the court held that although this might prove unjust, the trial judge had no discretion to do anything other than revoke the suspended sentence in its entirety, after the fact of the breach had been established.

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“The object of the section as a whole is to deal with a perceived injustice where reactivation of a suspended sentence or a suspended portion of a sentence could be perceived as disproportionate in the absence of a power in the court to reactivate the sentence in part.”32 There is no guidance given as to the operation of this subsection. However it is submitted that the court hearing the application to revoke should conduct an enquiry into the nature of the alleged breach and in particular how it relates to the original offences as well as a review of the current personal circumstances of the offender.

It is noted that the section refers to the “court” throughout and not “judge”. This suggests that once a breach occurs the case need not necessarily be remanded back to the original sentencing judge who imposed the suspended sentence. Ordinarily the original sentencing judge will hear the application for revocation but as the section only states “court”, another judge dealing with the application would appear not to be in excess of jurisdiction.33 Of note also is that once a breach occurs the defendant should be remanded back to the original sentencing court only. A practice has evolved of ‘double remanding’ an accused: one remand to the court for revocation and a simultaneous remand to a future date before the same court. There is no provision for remanding an accused to two separate dates once a breach has been established thus requiring two separate bail bonds. Section 99 only provides for a single remand. It is only after the original court has considered whether or not to revoke that the defendant is further remanded to the original sentencing court.34 Relevant date is date of conviction Section 99(9) provides that if a defendant “is, during the period of suspension of the sentence concerned, convicted” of an offence, he shall be remanded to the next sitting of the court that imposed the suspended sentence. This is so irrespective of the date of commission of the offence. The mechanism provided by the Act allows for a conviction to be recorded (absent sentence imposed) which triggers s.99(9).

The word “convicted” is not defined in Part 10 of the 2006 Act but it suggests the date upon which a person pleads guilty to an offence or is found guilty by a court or jury. There has been confusion in the past as to when precisely the conviction occurs. In DPP v Cawley,35 Herbert J. in the Central Criminal Court held that a plea of guilty constituted a “conviction” within the meaning of Section 14(1) of the Sex offenders Act 2001 notwithstanding that it occurred on a date prior to the imposition of sentence.

Under s.99. a defendant who is convicted of an offence during the currency of a bond must be remanded back for 32 People (DPP) v Gordon Ryan [2009] IECCA 21; unreported Court of Criminal Appeal (Finnegan, Herbert and De Valera JJ.), March 20, 2009.

33 c.f. the remarks of the Court of Criminal Appeal in People (DPP) v Stewart supra. at footnote 16.

34 s.99(10A) of the 2006 Act as inserted by s.60 of the 2007 Act. 35 [2002] 4 I.R. 321.

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revocation, even if the commission of the breach offence pre-dated the bond. This anomalous situation provides that a defendant in those circumstances must rely on the court exercising his discretion not to revoke as provided. The remarks of Dunne J. in McManus v O’Sullivan and DPP.36 in describing the position at common law are apposite: “The second and perhaps somewhat self-evident point to note is that the alleged breach of the bond must occur prior to the operational period of the bond. It seems to me that from time to time there maybe some condition as to this particular point. For example, is a conviction recorded during the period of the bond in respect of an incident which occurred prior to the operational period of the bond a breach of the bond? It is difficult to see how this could be so given that the bond entered into requires the accused to be of good behaviour during the period of the bond and the recording of a conviction for an offence committed outside the period of the bond would not appear to be a breach of the bond.”37 A second anomaly arises from the use of the phrase “convicted” in the subsection. If an offence is committed within the period of the bond, but no conviction is imposed until the period has elapsed, s.99 does not require an order remanding the defendant for revocation. The question arises as to whether a prosecutor could then seek to revoke the sentence using the common law method notwithstanding the nonapplicability of s.99(9).

Retrospectivity of the section A problem encountered is the operation of s.99 in relation to suspended sentences imposed under the common law.

Sections 99(9) and 99(17) refer to “a person to whom an order under subsection (1) applies”. Therefore, it would appear that the section does not apply to a suspended sentence imposed prior to the commencement of the 2006 Act. Similarly, where the sentence was suspended after the commencement of the 2006 Act but prior to the commencement of the 2007 Act, should the defendant be treated under the 2006 Act regime or the 2007 Act regime? Similar questions arise in relation to the date of the offence which is in breach of the suspended sentence.

While the law’s abhorrence of retrospectivity in a criminal sphere does not usually extend to procedural provisions, there is arguably a penal aspect to the 2007 Act (mandatory consecutive sentencing) which is (admittedly slightly) less restrictive in s.99 of the 2006 Act as promulgated.

Previously it was thought that s.99 did not apply to the revocation of sentences suspended under the common law.38 36 [2007] IEHC 50; unreported High Court (Dunne J.), March 5, 2007.

37 ibid., at pp.8-9 of the judgment.

38 DPP v Mark Dillon; unreported judgment of His Honour Judge Michael White of the Circuit Court delivered on March 3, 2008 who held, in a reserved judgment, that s.99 was not retrospective and that the common law power to revoke a suspended sentence subsisted despite the passage of the 2006 Act. Also, the High Court had, on occasion been minded to prohibit the process of revocation where the District Court has sought to apply the provisions of the

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However in the recent case of People (DPP) v Gordon Ryan,39 the Court of Criminal Appeal was asked to consider whether the provisions of s.99 could be applied to a partially suspended sentence imposed in 2000. The applicant had been sentenced to 12 years, the final six of which were suspended. Following his release, he was convicted of a number of offences, only one of which convictions post-dated the commencement of s.99. The court held that the provisions of s.99(17) could apply to common law suspended sentences and the court could therefore partially revoke a sentence in accordance with s.99: “There is nothing in the wording of subsection (17) to impose a temporal restriction on the jurisdiction thereby conferred so that only those whose sentences are imposed after the commencement of section 99 should benefit. To give full effect to the ordinary meaning of the wording of subsection (17) and to the statutory intention it is appropriate that it should apply to post-commencement applications to reactivate where subsection (9) has no application. It is also consistent with the scheme of the statute that the power conferred by subsection (17) should apply where there has been a breach of condition, including a breach of a condition to keep the peace and be of good behaviour, on an application for reactivation of a suspended sentence or portion of a sentence where the condition was imposed prior to commencement of section 99 but the application to reactivate is made after commencement of the section. In such circumstances the court is given power, additional to those powers which existed at common law, to treat the breach as de minimis or to reactivate the sentence in full, to reactive in part a suspended sentence.”40 Consecutive element of the subsequent sentence A new aspect introduced in legislation was the mandatory consecutive element of the sentence imposed after a case is remanded for sentence for the subsequent offence. Section 99(11)41 provides that after the defendant has been dealt with by the court that imposed the suspended sentence (whether the suspended sentence be revoked or not), that court must remand the person back to the court for sentencing for the subsequent offence.

The section specifically provides that the sentence for the subsequent offence shall not commence until the expiry of any of the suspended sentence that has to be served. This new consecutive element to the subsequent sentence could be interpreted as a harsh on first reading, but this can be 2006 Act and 2007 Act retrospectively: Owen Oglesby v Judge Miriam Malone, Judge Frank O’Donnell and DPP unreported High Court ex tempore April 28, 2008 (record number 2008/106JR) and Vitaliy Glebov v Judge Cormac Dunne, Judges of Limerick District Court and DPP unreported High Court ex tempore, February 18, 2008 (record number 2007/1397JR). Neither Oglesby nor Glebov were opposed.

39 [2009] IECCA 21; unreported Court of Criminal Appeal (Finnegan, Herbert and De Valera JJ.), March 20, 2009.

40 ibid.

41 as amended by s.60 of the 2007 Act.

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balanced with the fact that courts now have the discretion to not revoke (or to partially revoke) a suspended sentence.

Anecdotal evidence would suggest this provision is not being applied in a uniform manner in practice.

While s.99 provides for the remand of the defendant for revocation where he is “convicted” of an offence during the currency of the bond, s.99(11)(a) as promulgated provided for the imposition of a mandatory consecutive sentence only where the breach offence was “committed” during the currency of the bond. The insertion of a new s.99(11)(a) by s.60(d) of the 2007 Act has done away with this distinction.

Section 99 and non-severability It has been suggested that the operation of s.99 offends the principle that conviction and sentence cannot be severed.

This argument proceeds on the basis that after convicting a person, it makes no sense to then separate the sentence, which should follow, by remanding the defendant to another court for possible revocation prior to the imposition of penalty.

This issue has been considered by the High Court in Harvey v Leonard and DPP.42 There, the applicant brought judicial review proceedings seeking certiorari to quash the order of the District Judge who had remanded the applicant pursuant to s.99(9). It was argued that there was no jurisdiction to remand him for revocation of a suspended sentence absent an order sentencing him as the conviction could not stand alone. The applicant had pleaded guilty to a summary offence in the District Court. It was disclosed that the applicant had committed the offence during the period of a suspended sentence and he was therefore remanded back before the original court that imposed the suspended sentence under s.99(9) (as amended).

The applicant argued that this was in excess of the court’s jurisdiction as, in summary procedure, a conviction could not stand alone as a valid ordered divorced from penalty because of the principle of non-severability.43 In refusing the application, Hedigan J. found that conviction and sentence existed independently and did not offend the principle of non-severability: “The challenge is based on what I consider the mistaken view that conviction and sentence are so inextricably linked that nothing of substance can occur between them. That proposition cannot be correct.

42 [2008] IEHC 209; unreported High Court (Hedigan J.), July 3, 2008.

43 State (Sugg) v O’Sullivan, Unreported, High Court (Finlay P), June 23, 1980, State (O’Reilly) v Delap, unreported High Court (Gannon J), December 20, 1985, State (de Búrca) v Ó hÚadhaigh [1976] 1 I.R. 85.

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Experience over many years shows practitioners that District Judges regularly convict and put back for sentence. There may be sought probation or other reports or all manner of further evidence before sentence is imposed. The procedure contemplated by s. 99 is obviously different but nonetheless clearly occurring within the same hiatus between conviction and sentence. The reality in all such cases is that the accused has been convicted and awaits sentence.

The wording of the Act could not be clearer and its meaning is also clear. The requirement on the District Judge is mandatory and the District Judge’s actions were exactly in accordance therewith.”44 The shortcomings of the operation of the section are best illustrated by example. A defendant is given a suspended sentence by the Central Criminal Court. He is subsequently convicted of an offence during the period of suspension after contesting the charge in the District Court. The court then remands the defendant to the Central Criminal Court pursuant to s.99(9) as amended. The Central Criminal Court then revokes the suspended sentence in full. The defendant then appeals his District Court conviction de novo to the Circuit Criminal Court. If his appeal is successful, how can the matter be revisited again by the Central Criminal Court? If his appeal is unsuccessful, does the Circuit Court have jurisdiction to reconsider sentence or must it await the decision of the District Court following remand back from the Central Criminal Court?

Conclusion The codification of suspended sentences is welcome as it provides reasonable and much needed changes to the common law position notwithstanding its description as being “…no more than a restatement in statutory form of the position at common law rather than as the creation of a statutory jurisdiction”.45 The provision of discretionary elements, partial revocation and notification procedures are most welcome additions to what were haphazard procedures under the common law system. Nonetheless, it is unfortunate that given the subsequent amendment in 2007, no steps were taken to clarify the confusion surrounding the operation of the section. It remains to be seen as to whether a coherent operation of the section can be described by the courts without the need for further legislative intervention. ■ 44 per Hedigan J., at p. 8 of his judgment.

45 per Finnegan J. in People (DPP) v Gordon Ryan [2009] IECCA 21; unreported Court of Criminal Appeal (Finnegan, Herbert and De Valera JJ.), March 20, 2009.

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Legal

Journal of the Bar of Ireland. Volume 14, Issue 2, April 2009

Update

A directory of legislation, articles and acquisitions received in the Law Library from the 27th January 2009 up to 18th March 2009.

Judgment Information Supplied by The Incorporated Council of Law Reporting Edited by Desmond Mulhere, Law Library, Four Courts.

ADMINISTRATIVE LAW Statutory Instrument Appointment of special advisers (Minister for the Environment, Heritage and Local Government SI 420/2008

ADOPTION Article Tobin, Brian EB v France: endorsing un-”convention”- al families?

2008 (4) IJFL 78

AGRICULTURE Statutory Instrument Agriculture (research, training and advice act) (transfer of property) order 2009 SI 16/2009

Arbitration Award Application to set aside or remit award – Agreement for sale of accountancy practice – Dispute regarding consideration payable – Abatement – Dispute resolution mechanisms – Appointment of arbitrator as expert under agreement – Dispute regarding interpretation of expert opinion – Submission to arbitration under Act – Interim award – Methodology to be employed in calculating consideration - Final award calculating consideration and interest payable – Whether arbitrator misconducted arbitration – Whether arbitrator misinterpreted and misapplied provisions of agreement – Whether patent errors on face of award – Whether arbitrator adopted methodology for calculation of consideration outside scope of reference – Failure to challenge interim award – Estoppel – Jurisdiction to set aside arbitral award – Status and effect of interim award – Whether arbitrator functus officio in relation to interim award – Time limit for application to remit or set aside award – Whether obligation to give reasoned explanation as to calculation

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– Schott schedule – Whether contents of Schott schedule incorporated in final award – Keenan v Shield Insurance Company Ltd [1988] IR 89, Societe Franco-Tunisienne d’Armement-Tunis v Government of Ceylon [1959] 1 WLR 787, Tobin and Twomey Services v Kerry Foods [1996] 2 ILRM 1, McCarthy v Keane [2004] 3 IR 617, Limerick City Council v Uniform Construction Ltd [2007] 1 IR 30 and Bórd na Mona v John Sisk & Son Ltd (Unrep, Blayney J, 31/5/1990) considered – Arbitration Act 1954 (No 26), ss 36 and 38 – Application dismissed (2007/129MCA – Laffoy J – 3/6/2008) [2008] IEHC 287 Hogan v Byrne Procedure Time limits – Set aside award - Extension of time to apply to court - 6 week period within which to initiate application – Applicable test in determining whether to grant extension - Weight to be given to factors - Interests of justice - Likelihood of prejudice - Whether applicant guilty of unreasonable or culpable delay - Whether applicant demonstrated good arguable case on merits that award should be set aside - Bórd na Mona v John Sisk & Son Ltd (Unrep, Blayney J, 31/05/1990) followed; Keenan v Shield Insurance Ltd [1988] IR 89 and Tobin and Twomey Services Ltd v Kerry Foods Ltd [1999] 3 IR 48 considered; Vogelaar v Callaghan [1996] 1 IR 88 distinguished; McCarthy v Keane [2004] IESC 104 [2004] 3 IR 617 and Tramountana v Atlantic Shipping [1978] 2 All ER 870 applied - Arbitration Act 1954 (No 26), ss 38 and 41- Rules of the Superior Courts 1986, O 56, r 4(e) - Extension of time to set aside arbitration award refused (2008/35, 36 & 43MCA – Laffoy J - 25/4/2008) [2008] IEHC 121 Clancy v Nevin (snr) Library Acquisition Born, Gary B International commercial arbitration 3rd ed London: Kluwer Law International, 2009 C1250

AVIATION Practice and procedure Special summons - Whether proceeding required or authorised by law – Whether no other procedure prescribed in respect of complaint – Right of appeal pursuant to regulations – Whether regulations create free standing right of appeal – Duty to have regard to wording and purpose of Directive in interpreting regulations – Whether judicial review appropriate medium for complaint – Nathan v Bailey Gibson Ltd [1998] 2 IR 162 considered – Council Directive 96/67/EC – European Communities (Access to the Ground Handling Market at Community Airports Regulations (SI 505/2008), regs 14 to 17 - Rules of the Superior Courts 1986 (SI 15/1986), O 3 – Special summons struck out (2008/421SP - Kelly J – 8/8/2008) [2008] IEHC 278 Ryanair Ltd v Commission for Aviation Regulation

BANKING Article Barrett, Max Guaranteed Irish - the credit institutions (financial support) act 2008 and the EC (deposit guarantee schemes) regulations 2008 15 (11) CLP 255

CHILDREN Articles Carr, Nicola Exceptions to the rule? The role of the High Court in secure care in Ireland 2008 (4) IJFL 84 Long, Eimear The Hague Convention on the protection of children - what’s new?

2008 (4) IJFL 92 Library Acquisition Council of Europe International justice for children Strasbourg Cedex: Council of Europe, 2008 N176

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COMMERCIAL LAW Library Acquisition Collins, Denise Law Society of Ireland Business law London: Oxford University Press, 2008 N250.C5

COMPANY LAW Examinership Petition seeking appointment of examiner – Petition to wind up company also pending – Some creditors opposed to examinership – Accountant’s assertion that company would have reasonable prospect of survival – Company not trading for four months – Whether requirement for objective evidence of accountant’s opinion – Whether requirement for indication of how scheme of arrangement to be achieved – Whether sufficient evidence of reasonable prospect of survival of company adduced - Whether non-trading company a going concern for purposes of jurisdiction of court - In Re Tuskar Resources plc [2001] 1 IR 668 and In re Atlantic Magnetics Ltd (in Receivership) [1993] 1 IR 561 applied - Companies (Amendment) Act 1990 (No 27) s 2 – Petition to appoint examiner refused (2008/347COS – Laffoy J – 1/9/2008) [2008] IEHC 327 In re Fergus Hynes (Developments) Ltd Fraudulent preference Disposal – Disposition – Whether disposal of goods was fraudulent preference – Whether dominant intention was to prefer one creditor over other creditors – Whether goods acquired in knowledge that company could not discharge debts to other creditors – Carna Foods Ltd v Eagle Star Insurance Co (Ireland) Ltd [1997] 2 IR 193, Sullivan v Southern Health Board [1997] 3 IR 123 and Ward v Spivack Ltd [1957] IR 40, Corran Construction Co v Bank of Ireland Finance Ltd [1976-1977] ILRM 175 and Station Motors Ltd v AIB Ltd [1985] IR 756 applied; Trollope and Colls Ltd v North West Metropolitan Regional Hospital Board [1973] 1 WLR 601 and Re M Kushler Ltd [1943] Ch 248 considered - Companies Act 1963 (No 33), s 286 - Companies Act 1990 (No 3), s 139 – Payment to liquidator ordered (2007/89Cos – Murphy J – 11/11/2008) [2008] IEHC 349 Le Chatelaine Thudichum Ltd: Le Chatelaine Thudichum Ltd v Conway Liquidator Debt - Monies due and owing to company - Experienced trader in stock market Whether defendant acted as agent for other persons – Whether full and final settlement made of all monies outstanding – Whether instructions carried out – Whether plaintiff company in breach of obligations – Whether

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defendant entitled to claim monies due as set off - Whether defendant owed money from plaintiff company - Whether defendant responsible for debts incurred as result of acting as agent - Decree granted (2000/780S & 791S - McMahon J - 13/6/2008) [2008] IEHC 181 Money Markets International Stockbrokers Ltd (in liquidation) v Barnes Security for costs Limited company plaintiff - Sufficient security for costs – Insolvency not in dispute – Possibility of sums in liquidation account being paid out in priority to any costs order – Whether reasonable to believe company would be unable to pay costs – Whether prima facie defence to proceedings – Objection on grounds of delay – Whether special circumstances justifying refusal of application – SEE Co Ltd v Public Lighting Services Ltd [1987] ILRM 255 and Hidden Ireland Heritage Holidays Ltd v Indigo Services Ltd [2005] 2 IR 115 distinguished – Companies Act 1963 (No 33), s 390 – Security for costs directed and proceedings stayed until security given (2005/126COS – Finlay Geoghegan J – 25/7/2008) [2008] IEHC 281 PDC (Moate) Ltd v Allied Irish Banks plc Shareholder Derivative action – Fraud on minority – Locus standi – Whether plaintiff could institute proceedings on behalf of company – Whether plaintiff entitled to institute proceedings where justice of case required it – Whether right to bring derivative action to be determined as preliminary issue – Whether court should have regard to plaintiff ’s potential right to indemnity from company in respect of legal costs – Appropriate burden of proof when granting leave to take derivative action - Foss v Harbottle (1843) 2 Hare 461 applied; Barrett v Duckett [1995] 1 B.C.L.C. 243 and Wallersteiner v Moir (No 2) [1975] QB373 followed; Biala PTY v Mallina Holdings Ltd [1993] ACFR 785, Glynn v Owen [2007] IEHC 328 (Unrep, Finlay Geoghegan J, 5/10/2007) and Moylan v Irish Whiting Manufacturers Ltd (Unrep, Hamilton J, 14/4/1980) considered – Leave refused (2008/30IA - Irvine J – 30/7/2008) [2008] IEHC 277 Fanning v Murtagh Winding up Petition – Grounds for winding up – Loans to company by directors of company – Connected creditors – Contest over appointment of liquidator – Creditors meeting – Whether votes of directors of company should be disregarded in contest for appointment of liquidator – Whether company should be wound up voluntarily – Whether petition should be dismissed – Re Falcon RJ Developments Ltd [1987] BCLC 437 and Re Magnus Consultants Ltd [1995] 1 BCLC 203 considered - Companies Act

1963 (No. 33), s. 267(3) – Petition dismissed (2008/250COS – Laffoy J – 31/7/2008) [2008] IEHC 329 Re Balbradagh Development Ltd Articles Eaton, Sinead Not so separate legal personality and bad debts 2009 16 (1) CLP 13 Mansfield, Barry Re Flightlease revisited - lawsuits pending under the insolvency regulation 2009 16 (1) CLP 3 Otterburn, Andrew Managing to pull through 2009 (January/February) GLSI 28 Library Acquisitions Cordes, Madeleine Shackleton the law and practice of meetings 11th ed London: Sweet & Maxwell, 2008 N263.9 Forde, Michael The law of company insolvency 2nd ed Dublin: Thomson Round Hall, 2008 N312.C5 Keay, Andrew R Directors’ duties Bristol: Jordan Publishing Limited, 2009 N264 Stafford, Andrew Fiduciary duties: directors and employees Bristol: Jordan Publishing, 2008 N210 Thomson Round Hall Corporate restructuring conference 2008: legal and financial implications papers Dublin: Thomson Round Hall, 2008 N262.6.C5 Statutory Instrument Companies (auditing and accounting) act 2003 (commencement) order 2009 SI 13/2009

COMPETITION LAW Interlocutory injunction Airport operator – Airport kiosks – Refusal by plaintiff to enter into lease as required by defendant – Other airlines allegedly not required to enter into lease – Other airlines subsequently required to enter into lease Abuse of dominant position alleged – Monies owing by plaintiff withheld – Monies owing reduced on eve of Commercial Court hearing with effect of ousting jurisdiction - Whether clean hands – Whether withholding of monies inequitable – Whether reduction of amount

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owed on eve of hearing inequitable – Whether failure to inform defendant of intention to dispute entitlement to require lease inequitable - Whether agreement that plaintiff could carry out installation of kiosks without entering into lease – Whether entitlement to relief had lapsed because of change in circumstances – Whether balance of convenience favoured granting of relief – Whether prima facie case established – Whether damages adequate remedy – Whether retention of sum owing evidenced adequacy of damages – Whether relief sought in effect mandatory - Campus Oil Ltd v Minister for Energy (No 2) [1983] IR 88, Pasture Properties v Evans (Unrep, Laffoy J, 5/2/1999), Ryanair Ltd v Aer Rianta CPT (Unrep, Kelly J, 25/1/2001), Boyhan v Tribunal of Inquiry into the Beef Industry [1993] 1 IR 210 and Maha Lingham v Health Services Executive (2006) 17 ELR 137 applied; B&S Ltd v Irish Auto Traders Ltd [1995] 2 IR 142 considered - State Airports Act 2004 (No 32), ss 8 & 9 – Air Navigation and Transport (Amendment) Act 1998 (No 24), s 23 – Relief refused (2008/104IA – MacMenamin J – 29/10/2008) [2008] IEHC 338 Ryanair Ltd v Dublin Airport Authority plc Article Lysaght, Charles Competition authority report on solicitors and barristers (2008) 2 JSIJ 159

COMPULSORY PURCHASE Statutory Instrument Housing act 1966 (compulsory acquisition of land for motorways and service areas, etc) (form of notice) regulations 2008 SI 514/2008

CONFLICT OF LAWS Brussels Regulation Jurisdiction – Proceedings earlier commenced in non member state – Interpretation of Brussels Regulation - Domicile of defendant – Common law jurisdiction - Lis alibi pendens – Forum non conveniens – Whether discretion to stay proceedings – Whether Brussels Regulation removed discretion under common law - Whether lis alibi pendens stand alone aspect of private international law or example of doctrine of forum non conveniens – Whether seeking of negative declaration amounted to abuse of process - Owusu v Jackson [2005] ECR 1-398, Spilliada Maritime Corporation v Cansulex [1987] AC 460, Harrods (Buenes Aires) Ltd [1992] Ch 72, Inter Metal Group Ltd v Worslade Trading Ltd [1998] 2 IR 1, Analog Devices v Zurich Insurance [2002] 2 ILRM 366, Joseph Murphy Structural Steel Engineers Ltd v Manitowac (UK) Ltd (Unrep, SC, 30/7/1985), Abidin Daver [1984] 1 AC 398, Erich Gazzer GmbH v MISAT

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[2003] ECR 1 – 14693, S & W Berisford Plc v New Hampshire Insurance Company [1990] 2 All ER 321, Arkwright Mutual Insurance Company v Bryanstown Insurance Company [1990] 2 All ER 335 and Group Josi Re-Insurance Co v VGSC (2002) ECR 1-05925 considered - Council Regulation (E.C.) No. 44/2001, article 2, 27 and 34 – Application dismissed (2007/6588P– Clarke J – 27/2/2008) [2008] IEHC 90 Goshawk Dedicated Ltd v Life Receivables Ireland Ltd

CONSTITUTIONAL LAW Fair procedures Prosecution – Reversal of decision not to prosecute – Decision not to prosecute given without indication of possible reversal – Lack of new evidence to ground reversal – Reversal of decision cause of great stress and anxiety to applicants – Whether reversal of decision not to prosecute in breach of fair procedures having regard to all circumstances – Lack of reasons for reversal State (O’Callaghan) v. O’hUadhaigh [1977] IR 42; Hobson v DPP [2005] IEHC 368, [2006] 4 IR 239 and Eviston v DPP [2002] 3 IR 260 applied – Relief granted (2007/1323JR – Hanna J – 10/7/2008) [2008] IEHC 244 Keane v DPP Habeas corpus Alleged failure of State to discharge liabilities in separate proceedings – Alleged that District Court order in conflict with High Court order – Failure to set out basis for suggesting imprisonment unlawful – Whether delay in forwarding of application to court - Filing of affidavit directed (2008/1048JR – Clarke J – 18/9/2008) [2008] IEHC 285 Kearney v Governor of Limerick Prison Personal rights Prisoner – Complaint regarding lack of medical care – Orthodontic treatment – Dental hygiene – Treatment regime afforded to prisoners – Prison service healthcare standards – Discretionary treatment – Application refused (2008/789JR – Charleton J – 31/7/2008) [2008] IEHC 293 Kelly v Governor of Mountjoy Prison Property rights Statute - Validity - Foot and mouth cull – Legislation providing for compensation – Applicants compensated above market value of culled animals – Applicants asserting additional consequential loss – Proportionality principle - Statutory interpretation – Meaning of compensation - Whether necessary to further compensate for consequential loss – Whether compensation fair and reasonable – Whether legislation required compensation for consequential loss – Whether legislation

proportionate protection of property right – Whether Constitution required compensation for consequential loss – Whether distinction between compensation on basis of finding of fault and compensation to ameliorate hardship appropriate - Howard v Commissioners of Public Works [1994] 1 IR 101 applied; Heaney v Ireland [1994] 3 IR 593, Iarnród Éireann v Ireland [1996] 3 IR 321, Tuohy v Courtney [1994] 3 IR 1, In re the Planning and Development Bill 1999 [2000] 2 IR 321, In re the Health (Amendment) (No 2) Bill 2004 [2005] 1 IR 105, James v United Kingdom [1986] 8 EHRR 123, Platakou v Greece (Application 3 8460/97) (Unrep, ECHR, 11/01/2001), The Holy Monasteries v Greece (Unrep, ECHR, 09/12/1994), Lithgow v UK(Unrep, ECHR, 08/07/1986), Rooney v Minister for Agriculture and Food [1991] 2 IR 539, Pine Valley Developments v Minister for the Environment [1987] IR 23 and The State (Sheehan) v Ireland [1987] IR 550 considered - Diseases of Animals Act 1966 (No 6), ss 10, 17, 18, 20, 56 & 58 – Diseases of Animals (Amendment) Act 2001 (No 3), s 4 – Interpretation Act 2005 (No 23), s 5 - Foot and Mouth Disease Order 1956 (SI 324/1956), r 22 - Constitution of Ireland 1937, arts 3, 40 & 43 – Claim dismissed (2001/18343P – McGovern J – 31/10/2008) [2008] IEHC 344 Rafferty v Elmore Separation of powers Framework decision – Implementation – Extradition – European arrest warrant – Whether prior approval of Oireachtas granted – Standard for judicial intervention in other organs of state – TD v Minister for Education [2002] 4 IR 259 and Curtin v Dáil Éireann [2006] IESC 14 [2006] 2 IR 556 followed - Council Framework Decision on the European Arrest Warrant and Surrender Procedures 2002/584/JHA – European Arrest Warrant Act 2003 (No 45) – Constitution of Ireland 1937, Article 29.4.6° - Plaintiffs’ appeal dismissed (227/2006, 237 & 238/2007 – SC – 6/5/2008) [2008] IESC 29 Iqbal v Minister for Justice Statute Validity – Residential Institutions Redress Scheme – Equality – Discrimination on grounds of age – Definition of ‘child’ – Purpose of Act – Whether legitimate legislative purpose to age limit - Brennan v Attorney General [1983] ILRM 449, The Employment Equality Bill 1996 [1997] 2 1R 321, Dublin City Council v Fennell [2005] IESC 33, [2005] 1 IR 604 and Schmidt v Germany (1994) 18 EHRR 513 considered - Residential Institutions Redress Act 2002 (No 13), ss 1 and 7 – European Convention on Human Rights Act 2003 (No 20), s 2 – Constitution of Ireland, Article 40.1 – European Convention on Human Rights and Fundamental Freedoms 1950, articles 8, 13 and 14 - Definition of child declared unconstitutional (2006/1343jr – O’Neill J – 11/11/2008) [2008] IEHC 350

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D (J) v Residential Institutions Redress Review Committee Statutory interpretation Irish language text – Enactment in both national languages – Priority - Whether designation as public body ultra vires – Whether body under public ownership or control – Whether functions of body permitted by enactment – BUPA Ireland Ltd v Health Insurance Authority [2008] IESC 42, (Unrep, SC, 16/7/2008) and East Donegal Co-Operative Livestock Mart Ltd v Attorney General [1970] IR 317 applied - Official Languages Act 2003 (No 32), s 4 and sch 1, para 1(5) – Relief refused (2006/5705P – MacMenamin J – 14/10/2008) [2008] IEHC 309 Central Applications Office Ltd v Minister for Community, Rural and Gaeltacht Affairs Article Daly, Eoin Re-evaluating the purpose of church-state separation in the Irish constitution: the endowment clause as a protection of religious freedom and equality (2008) 2 JSIJ 86 Library Acquisitions Foley, Brian Deference and the presumption of constitutionality Dublin: Institute of Public Administration, 2008 Constitutional and administrative law: Civil rights: Ireland M201.C5 Keogh, Dermot The making of the Irish constitution 1937 Dublin: Mercier Press, 2007 M31.C5

CONSUMER LAW Articles Reilly, Nathan Defending criminal prosecutions under the consumer protection act 2007 2008 15 (11) CLP 263 Schuster, Alex Impact on tort litigation of the consumer protection act 2007 2008 3 (2) QRTL 7 Library Acquisition Hill, Jonathan Cross-border consumer contracts Oxford: Oxford University Press, 2008 W112 Statutory Instrument Circuit Court rules (consumer protection act 2007) 2008

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Herron, Niamh Performance anxiety 2009 (January/February) GLSI 24

[1988] 1 IR 51, O’Mahony v Ballagh [2002] 2 IR 410, Smith v Judge Ní Chondúin [2007] IEHC 270, (Unrep, McCarthy J, 3/7/2007) and Foley v Murphy [2007] IEHC 232, (Unrep, McCarthy J, 2/7/2007) considered - Equal Status Act 2000 (No 8) ss, 21, 22, 25, 28, 29 and 38 – Certiorari granted (2007/1607JR – MacMenamin J 13/6/2008) [2008] IEHC 177 Clare Co Co v Kenny

Library Acquisition

Jurisdiction

Lawson, Richard Exclusion clauses and unfair contract terms 9th ed London: Sweet & Maxwell, 2008 N18.8

Supreme Court – Appeal from High Court – Costs – Determination of High Court in relation to point of law concerned shall be final and conclusive – Whether determination includes issue of costs – People (Attorney General) v Conmey [1975] IR 341 followed - Residential Tenancies Act 2004 (No 27), s 123 - Appeal on costs admitted (271/2007 – SC – 30/4/2008) [2008] IESC 24 Canty v Private Residential Tenancies Board

SI 585/2008

CONTRACTS Article

COPYRIGHT Statutory Instruments Copyright and related rights (proceedings before the controller) rules 2009 SI 20/2009 Copyright and related rights (public lending remuneration scheme) regulations 2008 SI 597/2008

CORONERS Statutory Instrument Coroners act, 1962 (fees and expenses) regulations, 2008 SI 561/2008

COSTS Library Acquisition Cook, Michael J Cook on costs 2009 2009 ed London: LexisNexis: 2008 L89

COURTS Jurisdiction Circuit Court - Judicial review - Certiorari – Duty to give reasons - Procedure adopted - Decision of Circuit Court Judge to accept jurisdiction to hear appeal from Equality Officer– No reason or rationale given for decision to accept jurisdiction - Whether appeal properly and lawfully before court – Whether court had jurisdiction to consider and decide appeal - Whether judge had regard to extraneous considerations – Whether statutory conditions for appeal fulfilled - State (Cork County Council) v Fawsitt (Unrep, McMahon J, 13/3/1981), State (Holland) v Kennedy [1977] IR 193, State (Hennessy) v Commons [1976] 1 IR 238, State (Creedon) v Criminal Injuries Compensation Tribunal

CRIMINAL LAW Appeal Application for leave to appeal against conviction – New ground of appeal – New evidence - Adverse publicity – Extensive press and media coverage during and after trial Application to adduce new ground of appeal during course of leave hearing – No requisition raised at trial -Credible reasons - Interests of justice – Failure to include new ground in the original grounds of appeal – Factors to be considered - Procedural requirements - No evidence on affidavit - Whether any exceptional circumstances to hear application - Nature of application - Criteria – Whether failure to raise requisitions occurred as result of inadvertence on part of legal advisers – Whether reasons tendered to court to explain failure - Whether new ground of appeal should have been the subject matter of requisition - Rules of the Superior Courts 1986 O 86 r 4 – People (DPP) v Foley [2006] IECCA 72, (Unrep, CCA, 1/6/2006) followed - People (DPP) v Cronin (Unrep, CCA, 16/5/2003); People (DPP) v Moloney (Unrep, CCA, 2/3/1992); People (DPP)) v Noonan [1998] 2 IR 439; People (DPP) v Boyce [2005] IECCA 143, (Unrep, CCA, 21/12/2005); DPP v Cooke [2006] IECCA 32, (Unrep, CCA, 15/3/2006); People (DPP) v Dundon [2006] IECCA 14, (Unrep, CCA, 13/2/2008) considered - Application to admit new evidence - Applicable principles - Criteria Whether exceptional circumstances established - Whether evidence sought to be adduced in existence at time of trial - Reasonable diligence - Whether evidence influential - DPP v Cooke [2006] IECCA 32, (Unrep, CCA, 15/3/2006); Murphy v Minister for Defence [1991] 2 IR 161; Lynagh v Mackin [1970] IR 180 and People (DPP) v Willoughby [2005] IECCA 4, (Unrep, CCA, 18/2/2005) considered - Applications refused (106/2007 - CCA - 24/7/2008) [2008] IECCA 112

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People (DPP) v Griffin Director of Public Prosecutions Charges – Fair procedures – Decision not to prosecute offence of rape – Applicant charged with lesser offence – Summary trial on plea of guilty directed – Applicant elected for trial by jury – Offence similar to that charged subsequently declared inconsistent with Constitution – Nolle prosequi entered – Applicant subsequently rearrested and charged with rape – Whether charge permissible – The State (O’Callaghan) v O’ hUadhaigh [1977] IR 42, The State (Healy) v Donohue [1976] IR 325 and Eviston v DPP [2002] 3 IR 260 applied - Prosecution of Offences Act 1974 (No 22) s 2 – Criminal Law (Rape) Act 1981 (No 10) s 2 – Applicant’s appeal allowed (329/2007 – SC – 30/10/2008) [2008] IESC 61 E (G) v DPP Director of Public Prosecutions Reversal of decision not to prosecute – Decision not to prosecute given without indication of possible reversal – Lack of new evidence to ground reversal – Whether Director subsequently prevented from bringing charges – Whether applicants prejudiced in raising defence as a result of decision not to prosecute – Whether required to give reasons for reversal - State (O’Callaghan) v. O’hUadhaigh [1977] IR 42; Hobson v DPP [2005] IEHC 368, [2006] 4 IR 239 and Eviston v DPP [2002] 3 IR 260 applied – Relief granted (2007/1323JR – Hanna J – 10/7/2008) [2008] IEHC 244 Keane v DPP Evidence Admissibility - Detention - Whether lawful – Whether accused detained – Whether accused free to leave - Voluntary assistance given by suspect to gardaí – Caution – Self incrimination –Whether applicant in unlawful custody – Whether applicant should have been expressly informed that he was not under arrest and free to leave at any time – Whether absence of such warning resulted in applicant being detained in unlawful custody - Whether gardai acting lawfully – Failure to give warning against self incrimination - People (DPP) v Coffey [1987] ILRM 727 distinguished - People (DPP) v O’Loughlin [1979] IR 85 considered - People (DPP) v Walsh [1980] IR 294; People (DPP) v Shaw [1982] IR 1 and People (DPP) v Lynch [1982] IR 64 mentioned - Criminal Law (Rape) Act 1981 (No 10), s 2 – Sex Offenders Act 2001 (No 18), s 37 - Appeal dismissed (62/2007 – CCA - 30/7/2008) [2008] IECCA 143 People (DPP) v Ero Evidence Destruction of evidence – Dangerous driving causing serious harm – Destruction of car – Prosecution not relying upon condition of vehicle – Independent witness evidence

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of manner of driving – Car examined by prosecution prior to destruction – Affidavit of applicant asserting belief that steering locked prior to accident – Whether applicant had discharged burden of showing real risk of unfair trial – Whether mere assertion as to belief in affidavit sufficient - Z v DPP [1994] IR 476, Savage v DPP [2008] IESC 39 (Unrep, SC, 3/7/2008), Ludlow v DPP [2008] IESC 54 (Unrep, SC, 31/7/2008) and Scully v Director of Public Prosecutions [2005] IESC 11 [2005] 2 IR 242 applied – Relief refused (164/2007 – SC – 28/10/2008) [2008] IESC 58 Perry v DPP Evidence Disclosure – Domestic disclosure – Disclosure from overseas agencies – Late disclosure of garda surveillance notes – Real risk of unfair trial – Role of appellate court adjudicating on disclosure – Whether disclosure obligation on prosecution in relation to overseas agencies discharged by “good faith efforts” – Whether overriding obligation on court to ensure fairness – Whether delayed disclosure caused unfairness in trial – Whether conviction unsafe in light of disclosure made - Credibility – Credibility of key prosecution witness – Duty to give reasons – Whether credibility finding rational – Whether error in failing to give adequate reasons for belief that witness was credible – Whether error in failing to expressly particularise each credibility finding rendered verdict unsafe - DPP v Special Criminal Court [1999] 1 IR 60 applied; R v Ward [1993] 1 WLR 619 and Z v DPP [1994] 2 IR 476 considered – Appeal dismissed (467/2006 – SC – 30/2008) [2008] IESC 51 People (DPP) v McKevitt Evidence Failure to seek out evidence – Telephone records – Allegation of sexual assault against minor – Failure to seek complainant’s telephone records – Failure of applicant to raise matter during questioning - Records no longer retained by telecommunications operators - Delay – Delay in charging – Delay in applicant raising issue of phone records - Whether right to fair trial prejudiced – Whether failure to seek records of consequence where consent not defence – Whether unconscionable or blameworthy delay on part of prosecution - Dunne v DPP [2002] 2 IR 305, Braddish v DPP [2003] 3 IR 127, Scully v DPP [2005] IESC 11 [2005] 1 IR 242, O’Callaghan v Judges of Dublin Metropolitan District Court [2004] 2 IR 442, McFarlane v DPP [2006] IESC 11 [2007] 1 IR 134, PM v.

DPP [2006] IESC 22 [2006] 3 IR 172, Barker v Wingo 407 US 514 (1972), PG v DPP [2007] 3 IR 39 [2006] IESC 19, O’C v DPP [2006] 1 IESC 54 (Unrep, SC, 27/07/2006) and Blood v DPP [2005] IESC 8 (Unrep, SC, 02/03/2005) considered; Bowes v DPP [2003] 2 IR 25 and Murphy v DPP [1989] ILRM 71 distinguished-

Relief refused (2006/650JR - MacMenamin J - 31/7/2007) [2007] IEHC 483 C (R) v DPP Legal Aid Refusal of certificate for legal aid - Gravity of charge - Opinion expressed as to risk of imprisonment by prosecution – Whether trial judge failed to consider all relevant matters – Judge decided applicant not at risk - Whether question of gravity of charge entirely a matter for trial judge - Whether trial judge’s decision on gravity of offence capable of review by High Court - Function of District Court Judge - O’Neill v McCartan [2007] IEHC 83, (Unrep, Charleton J, 15/3/2007) and State (Daly) v Ruane [1988] ILRM 117 applied; DPP (Kearns) v Maher [2004] IEHC 251, [2004] 3 IR 512, Cahill v Reilly [1994] 3 IR 547 and Costigan v Brady [2004] IEHC 16, (Unrep, Quirke J, 6/2/2004) considered - Criminal Justice (Legal Aid) Act 1962 (No 12), s 2 - Relief refused (2007/1445JR - Hedigan J - 11/6/2008) [2008] IEHC 182 Neeson v Brady Legal Aid Refusal of certificate for legal aid – Opinion expressed as to risk of imprisonment by prosecution – Gravity of offence – Whether offences charged likely to result in custodial sentence – Circumstances where judge entitled to refuse legal aid - Role of prosecution Role of judge - Knowledge and experience of District Court Judge – Whether judge entitled to take view charges not likely to result in custodial sentence – Whether judge entitled to refuse application for legal aid certificate - Neeson v Brady [2008] IEHC 182, (Unrep, Hedigan J, 11/6/2008) considered - Relief refused (2007/1369JR – Hedigan J - 11/6/2008) [2008] IEHC 180 Bird v Brady Public order offence Failure to specify power – Failure to provide name – Whether garda making demand for name and address must specify power to make demand and that if particulars not given offence is committed – Whether person obliged to submit to demand pursuant to police powers where information not provided that such power exists – DPP v Rooney [1992] 2 IR 7, DPP v Galligan (Unrep, Laffoy J, 2/11/1995), Bates v Brady [2003] 4 IR 111, Christie v Leachinsky [1947] AC 573 and DPP v Cowman [1993] 1 IR 335 considered - Criminal Justice (Public Order) Act 1994 (No 2), ss 8 and 24 – Accused’s appeal by way of case stated allowed (2008/645SS – Charleton J – 29/10/2008) [2008] IEHC 334 DPP (Ryan) v Mulligan Road traffic Drunk driving – Requirement to give two

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specimens of breath – One specimen given but test rendered incomplete – Two further specimens given – Whether certificate based on second and third specimens admissible – Whether more than one requirement made – Whether permissible to seek two further specimens after one specimen already given in incomplete test – Penal statute - Interpretation – DPP v McGarrigle [1996] 1 ILRM 271 and DPP v Moorehouse [2006] IESC 52, [2006] 1 IR 421 applied; Howard v Hallett [1984] RTR 353 approved - Road Traffic Act 1994 (Section 17) Regulations 1999 (SI 326/1999), reg 3 – Road Traffic Act 1994 (No 7), ss 3, 13, 17, 21 and 23 – Answered in favour of accused (173/2006 – SC – 16/10/2008) [2008] IESC 57 DPP v McDonagh Road traffic Offence – Proof – Opinion – Validity – Arrest – Subsequent failure to provide specimen of breath – Whether request to provide breath sample lawful – Whether fact of driving mechanically propelled vehicle in public place prerequisite to requirement to provide breath specimen – Whether court entitled to convict in absence of proof of driving – Good and sufficient reasons – Whether accused could rely on lack of proof of driving as defence Director of Public Prosecutions v Joyce [2004] IEHC 264, (Unrep, Quirke J, 15/7/2004); Gallagher v O’Hanlon (Unrep, Finlay P, 10/7/1965), DPP v Breheny (Unrep, SC, 2/3/1993) and DPP v Penny [2006] IEHC 230, [2006] 3 IR 553 followed; Hobbs v Hurley (Unrep, Costello J, 10/6/1980) considered - Road Traffic Act 1961 (No 24), s 49(8) – Road Traffic Act 1994 (No 7), ss 13 and 23 – Case stated answered in favour of prosecutor (2008/188SS – Clark J – 5/11/2008) [2008] IEHC 347 DPP v Finnegan Sentence Severity – Assault – Four year custodial sentence imposed - Guilty plea - €1,000 paid by way of compensation – Appropriate sentence for offence - Facts of incident - Background circumstances – Appeal allowed; two year sentence imposed with total balance suspended from date of hearing (130/2008 - CCA 24/10/2008) [2008] IECCA 132 People (DPP) v Twomey Sentence Severity – Assault - Seriousness of offence - Ongoing psychological sequelae of victim - Sum of €12,000 in compensation paid over to victim – Mitigating factors - Fifteen years of non-offending - Responsible member of society - Behaviour result of medication capable of producing mood swings and sudden uncontrollable bouts of anger – No element of premeditation – Whether payment of significant compensation factor to which due weight must be given by sentencing judge

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- Maximum sentence of five years - Whether sentence represented an error of principle – Whether larger portion of sentence should have been suspended - Appeal allowed; four year sentence imposed with two years suspended (99/2008 -CCA - 24/10/2008) [2008] IECCA 131 People (DPP) v Hill Sentence Severity - Child pornography - Maximum five year sentence - Three year term of imprisonment imposed with two years postrelease supervision - Whether sentence excessively severe - Principles to be applied - Mitigating factors - No previous convictionsGravity of offence – Medical evidence suggesting more lenient view should be taken of case - Child Trafficking and Pornography Act 1998 (No 22), s 6 – Appeal allowed; sentence reduced to 18 months with 18 months suspended (96/08 - CCA - 24/10/2008) [2008] IECCA 130 People (DPP) v Smith Sentence Severity - Drugs offences - Co-accused – Discrepancy in manner co-accused sentenced - Consistency and proportionality of sentence between co-accused - Whether person with equal or greater culpability in offence received significantly lesser sentence – Whether lack of proportionality between sentences involved – Whether error in principle - Misuse of Drugs Act 1977 (No 12), ss 3 and 15 - Appeals allowed; sentence of three years imprisonment imposed with 2 suspended for first applicant and increased sentence of four years imprisonment with two suspended substituted for second applicant (241/2007 & 145/2008 - CCA 31/7/2008) [2008] IECCA 117 People (DPP) v Mungon & Lawal Sentence Severity - Drugs offences - Error in principle – Court unable to evaluate reasons for sentence - Appropriate sentence for offence - Circumstances of case - Value and nature of drugs - Seriousness of offence - Mitigation – Value of early plea where applicant caught red handed - Co-operation with gardaí - Personal circumstances - DPP v Dunne (Unrep, CCA, 17/10/2002) and DPP v Galvin (Unrep, CCA, 14/2/2005) considered - Misuse of Drugs Act 1977 (No 12), s 15A - Appeal allowed; sentence of 8 years imprisonment substituted (243/2007 - CCA - 31/7/2008) [2008] IECCA 118 People (DPP) v Nelson Sentence Severity - Drugs offences – Mandatory minimum sentence – Exceptional circumstances – Whether unjust to impose minimum sentence - Immediate plea - Admissions of considerable value and material assistance to prosecution –

Whether exceptional circumstances adequately taken into account - Applicant recently bereaved with added burden of attending to two teenage children– Whether sentence unduly harsh – Whether sentence adequately reflected exceptional circumstances – People (DPP) v Power [2007] IESC 31, [2007] 2 IR 509 considered - Misuse of Drugs Act 1977 (No 12), s 15A – Appeal allowed; sentence of five years imprisonment imposed (74/2008 - CCA - 13/10/2008) [2008] IECCA 127 People (DPP) v Brodigan Sentence Severity - Drugs offences - Sentence of seven years imprisonment with one year suspended imposed - Carrier of consignment of cannabis to Dublin Airport - Gravity of offence -Circumstances of offender – Whether sentence just and equitable and had regard to requirements of statute, public policy and justice - Significant mitigating nature of background circumstances - Immediate plea of guilty - Inducement to carry due to dire financial circumstances - Foreign national – Children in impoverished circumstances in South Africa – Whether any role for partially suspended sentence where accused foreign national with no connection to country - Appeal allowed; sentence reduced to period of three years and six months imprisonment (94/2008 - CCA - 20/10/2008) [2008] IECCA 123 People (DPP) v Whitehead Sentence Severity - Drugs offences - Totality of sentence to be served - Consecutive term of imprisonment of four years imposed following imposition of six year sentence for other drugs offences - Offence committed while on bail - Requirement that sentence imposed must be consecutive to longest sentence - Value of drugs - Whether insufficient regard by trial judge to totality principle – Whether error in principle - Bail Act 1997 (No 16), s 10 - Criminal Justice Act 1984 (No 22), s 11 - Misuse of Drugs Act 1977 (No 12), ss 3 and 15 - Appeal allowed; last two years of consecutive sentence suspended (238/07 -CCA - 31/7/2008) [2008] IECCA 116 People (DPP) v Abdi Sentence Severity - Possession of firearm and unlawful driving of stolen vehicle – Sentenced to consecutive terms of imprisonment – Sentencing judge erroneously advised of maximum sentence – Error in principle Seriousness of offence – Mid sentence range - Charges arose out of same event – Whether more appropriate to impose concurrent sentences - Appeal allowed; five years imprisonment and three years imprisonment to run concurrently imposed (121/2008 CCA - 13/10/2008) [2008] IECCA 129

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People (DPP) v McCann Sentence Severity - Rape - Whether trial judge fell into error in placing offence at level of seriousness meriting term of imprisonment of 15 years prior to taking into account any mitigating factors - Circumstances of offence - Seriousness of offence - Effect upon victim – Age of accused - Foreign national - Cooperation at trial in relieving State of obligation to have 20 witnesses present - Possibility of rehabilitation – Appeal allowed; term of nine years imprisonment imposed (58/2007- CCA 14/10/2008 [2008] IECCA 119 People (DPP) v D (A) Sentence Undue leniency – Assault - Application of provisions of Probation Act - Whether sentencing judge had inadequate regard to gravity or seriousness of offence – Whether undue regard had to existence of offer of compensation – Whether fact that compensation was offered and accepted factor which court must take into account when sentencing - Whether sentencing judge had adequate information or evidence upon which he could conclude that accused was person of considerable character – Failure to designate clearly and explicitly which provision relied on - Whether exercise of discretion was perverse or unjustified - DPP v McLoughlin [2005] 3 IR 19 considered - Criminal Justice Act 1993 (No 6), s 2 - Probation of Offenders Act 1907 (7 Edw 7, c 17), s 1(2) - Application by prosecutor for review of sentence refused (87CJA/08 - CCA - 13/10/2008) [2008] IECCA 128 People (DPP) v Jagoe Sentence Undue leniency – Assault - Four year prison sentence with two years suspended imposed - Extremely serious injury imposed on victim with long term consequences – Whether substantial departure from appropriate sentence - Gravity of assault - Gravity of injury – 25 previous convictions - Criminal Justice Act 1993 (No 6), s 2 - Appeal allowed; sentence increased to term of eight years with four years suspended (119CJA/2008 - CCA - 20/10/2008) [2008] IECCA 122 People (DPP) v Mooney Sentence Undue leniency – Drugs offences - Five year prison term with three years suspended imposed - Mandatory minimum sentence of ten years – Whether any specific and exceptional circumstances – Whether substantial departure from appropriate sentence in the circumstances – W hether requirement to facilitate rehabilitation factored into sentence - Criminal Justice Act 1993 (No 6), s 2 - Application granted; eight years imprisonment with four

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years suspended substituted (104CJA/2008 - CCA - 20/10/2008) [2008] IECCA 121 People (DPP) v O’Driscoll Sentence Undue leniency – Drugs offences - Whether early plea and admissions diminished to considerable extent by fact that accused effectively caught red handed as result of surveillance - Appeal allowed; Sentence of eight years imprisonment imposed with last 18 months suspended on terms (63CJA/2008 - CCA - 13/10/2008) [2008] IECCA 126 People (DPP) v Robinson Sentence Undue leniency - Seriousness of offences Premeditated nature of offences - Escalation of activities - Whether trial judge had sufficient regard to aggravating element of offences – Sentenced to 3 years imprisonment with one suspended to run concurrently - Whether sentences unduly lenient – Criminal Justice Act 1993 (No 6), s 2 - Appeal allowed; two sentences of three imprisonment with no suspension, and two sentences of five years with one year suspended to run concurrently imposed (10CJA & 188CJA/2008 - CCA 13/10/2008) [2008] IECCA 125 People (DPP) v Guy Sentence Undue leniency – Sexual offences - Indecent assault and rape involving young children within family circle – Sentenced to ten years imprisonment with five suspended - Onus on Director of Public Prosecutions to establish substantial departure from appropriate sentence - Seriousness and gravity of offences - Breach of trust - Plea of guilty after jury empanelled - Victim impact statements - No previous convictions - Whether substantial departure by sentencing judge from appropriate sentence - Antiquity of offences - Psychiatric report – Whether structure of sentence built in adequate safeguards to guard against further re-offending - People (DPP) v JT (Unrep, CCA, 6/11/1996) considered - Criminal Justice Act 1993 (No 6), s 2 – Application refused (102 CJA/2008- CCA - 20/10/2008) [2008] IECCA 120 People (DPP) v O’Regan Sexual offences Rape – Prior sexual history - Application for leave to cross examine complainant refused - Appropriate stage of trial to bring application – Whether grounds made out for application –Whether point of substantial nature - Obligation to move in timely manner – Interests of justice - Whether point of marginal relevance - Criminal Law (Rape) Act 1981 (No 10), s 3 - Appeal dismissed (133/2007 - CCA - 18/7/2008) [2008] IECCA 111 People (DPP) v Walsh

Articles Fitzgerald, John D. Reluctant witnesses and section 16 of the criminal justice act 2006 13 (6) BR 126 Gillespie, Alisdair A. Test purchasing of alcohol 2008 (18) ICLJ 98 Reilly, Nathan Defending criminal prosecutions under the consumer protection act 2007 2008 15 (11) CLP 263 Library Acquisition Card, Richard Sexual offences Bristol: Jordan Publishing, 2008 M544 Statutory Instruments Criminal justice (legal aid) (amendment) regulations 2009 SI 15/2009 Extradition act 1965 (application of part II) (amendment) order 2009 SI 9/2009 Rules of the Superior Courts (criminal justice acts 2006 and 2007) 2009 SI 10/2009

DEFAMATION Delay in prosecution of proceedings Dismissal of action – Want of prosecution – Plea of justification – Whether requirement to progress defamation proceedings with extra diligence – Whether plea of justification matter to be considered in assessing balance of justice - Dowd v Kerry County Council [1970] IR 27, Ewins v Independent Newspapers (Ireland) Ltd [2003] 1 IR 583 and Wakefield v Channel 4 Television Cor poration [2005] EWHC 2410, (Unrep, Queen’s Bench, Eady J, 4/11/2005) followed – Defendant’s appeal dismissed (317/2005 – SC – 15/10/2008) [2008] IESC 56 Desmond v MGN Ltd Article Cox, Neville Recent developments in defamation and breach of privacy law 2008 3 (2) QRTL 18

ELECTIONS Statutory Instrument City of Cork local electoral areas order 2008 SI 428/2008 City of Dublin local electoral areas order 2008 SI 427/2008

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City of Galway local electoral areas order 2008 SI 429/2008 City of Waterford local electoral areas order 2008 SI 431/2008 County of Cavan local electoral areas order 2008 SI 434/2008

order 2008 SI 450/2008 County of Westmeath local electoral areas order 2008 SI 451/2008 County of Wexford local electoral areas order 2008 SI 452/2008

County of Clare local electoral areas order 2008 SI 435/2008

ELECTRICITY

County of Cork local electoral areas order 2008 SI 436/2008

Electricity regulation act 1999 (electricity) levy order 2008 SI 563/2008

County of Fingal local electoral areas order 2008 SI 432/2008

EMPLOYMENT LAW

County of Galway local electoral areas order 2008 SI 441/2008 County of Kildare local electoral areas order 2008 SI 442/2008 County of Kilkenny local electoral areas order 2008 SI 443/2008 County of Laois local electoral areas order 2008 SI 444/2008 County of Leitrim local electoral areas order 2008 SI 445/2008 County of Limerick local electoral areas order 2008 SI 437/2008 County of Longford local electoral areas order 2008 SI 438/2008 County of Mayo local electoral areas order 2008 SI 447/2008 County of Meath local electoral areas order 2008 SI 439/2008 County of Monaghan local electoral areas order 2008 SI 446/2008 County of North Tipperary local electoral area order 2008 SI 448/2008 County of Offaly local electoral areas order 2008 SI 440/2008 County of South Tipperary local electoral areas order 2008 SI 449/2008 County of Waterford local electoral areas

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Statutory Instrument

Disciplinary procedures Fair procedures – Nemo judex in causa sua – Audi alterem partem - Dispute with other employee – Internal disciplinary process invoked – Large degree of consistency in opposing accounts – No opportunity to crossexamine complainant given - Written warning given – Decision not appealed - Plaintiff subsequently transferred – Allegation that transfer constituted punishment – Allegation that transfer caused reduction in income and pension rights – Delay in challenging decision – Claim for personal injuries because of stress –Whether prejudice - Whether delay precluded relief – Whether declaration sought of any benefit – Whether failure to exhaust alternative remedies - Whether fair procedures required opportunity to cross-examine where little dispute as to facts – Whether likely detrimental effect of cross-examination on complainant could be taken into account – Whether appropriate for decision maker to recommend counselling or comment on plaintiff ’s demeanour during hearing – Whether transfer constituted an additional sanction – Whether purported personal injuries foreseeable - The State (Abenglen Properties Ltd) v Corporation of Dublin [1984] IR 381, Ahern v Minister for Industry and Commerce (No 2) [1991] 1 IR 462, O’Doherty v Attorney General [1941] IR 569, Carroll v Bus Átha Cliath [2005] IEHC 1 & [2005] IEHC 278 [2005] 4 IR 184, Gallagher v Revenue Commissioners (No 2) [1995] 1 IR 55 and Mooney v An Post [1998] 4 IR 288 applied – Code of Practice on Disciplinary Procedures Order (SI 117/1996), art 11 – Relief refused (1998/3571P – Laffoy J – 21/10/2008) [2008] IEHC 332 Shortt v Royal Liver Assurance Ltd Disciplinary procedures University professor – Internal disciplinary procedures – Procedures subsequently modified by statute – Statute provided for benefits of pre-existing procedures to continue

– Injunction - Whether defendant acting ultra vires – Defendant’s appeal rejected (325/05 – SC – 28/10/2008) [2008] IESC 59 Fanning v University College Cork Injunction Interlocutory injunction – Disciplinary procedures – Fair procedures – Plaintiff placed on administrative leave with pay – Nemo judex in causa sua – Perception that complainant a participant in disciplinary process - Delay of two months in bringing case - Whether plaintiff entitled to fair procedures – Whether reasonable perception of unfair hearing – Whether higher standard appropriate in mandatory injunction Whether damages adequate remedy – Whether balance of convenience in favour of injunction – Whether delay inordinate - Campus Oil Ltd v Minister for Industry and Energy (No 2) [1983] IR 88, American Cyanamid Company v Ethicon Ltd [1975] AC 396, Carroll v Bus Átha Cliath [2005] IEHC 1 [2005] 4 IR 184, McNamara v South Western Area Health Board [2001] IEHC 24 (Unrep, Kearns J, 16/2/2001), O’Donoghue v South Eastern Health Board [2005] IEHC 349 [2005] 4 IR 217, O’Neill v Beaumont Hospital Board [1990] ILRM 419, Bergin v Galway Clinic Doughiska Ltd [2007] IEHC 386 [2008] 2 IR 205, Coffey v William Connolly & Sons Ltd [2007] IEHC 319 (Unrep, Edwards J, 18/09/2007) applied; Maha Lingham v Health Service Executive (2006) 17 ELR 137 considered; Murtagh v Board of Management of St Emer’s National School [1991] 1 IR 482 distinguished- Health Act 1970 (No 1) - Rules of the Superior Courts 1986 (SI 15/1986), O 56, r 6 – Injunction granted (2008/1845P - McMahon J - 11/7/2008) [2008] IEHC 234 Khan v Health Service Executive Injunction Interlocutory injunction - Disciplinary procedures – Plaintiff suspended for one week with pay – Standard to be met in order to grant relief - Construction of contract – Procedures agreed with representative body – Minister’s code of practice – Whether fair case or strong case required – Whether fair case that contract provided right of appeal – Whether contractual right of appeal could be lost by failure to engage with disciplinary procedures – Whether certain level of disciplinary action required in order for courts to intervene - Doherty v Health Service Executive [2008] IEHC 331 (Unrep, Laffoy J, 1/9/2008) applied; Maha Lingham v Health Service Executive (2006) 17 ELR 137 and Murtagh v Board of Management of St Emer’s School [1991] 1 IR 482 considered – Relief refused (2008/7590P – Clarke J – 18/09/2008) [2008] IEHC 319 Dillon v Board of Management of the Catholic University School Nature of work relationship Contract for services – Contract of service

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– Mutuality of obligation – Enterprise test – Control – Integration – Whether tribunal erred in law – Whether tribunal applied incorrect test – Appeal from Employment Appeals Tribunal – Point of law – Jurisdiction of court to review – Principles which apply – Whether any definitive test - Henry Denny & Sons (Ireland) Ltd v Minister for Social Welfare [1998] 1 IR 34, Tierney v An Post [2000] 1 IR 536, Electricity Supply Board v Minister for Social Welfare [2006] IEHC 59, (Unrep, Gilligan J, 21/2/2006), Market Investigations v Minister of Social Security [1969] 2 QB 173 considered; The Moorcock (1889) 14 PD 64 and Shirlaw v Southern Foundries (1926) Ltd. [1939] 2 KB 206 applied; Nethermere (St Neots) Ltd v Gardiner [1984] ICR 612 and Carmichael v National Power plc [1999] ICR 1226 approved – Minister’s appeal allowed; matter remitted to EAT (2007/344SP – Edwards J – 7/7/2008) [2008] IEHC 216 Minister for Agriculture v Barry

W131.5

Articles

Delay

Connolly, Neil Nobody expects the Spanish Inquisition

Ten years since alleged commission of offences – Appellant unable to take up bail for part of period - Whether unjust, oppressive or invidious to deliver appellant – Whether exceptional lapse of time – Whether other exceptional circumstances – Whether lapse of time also capable of constituting exceptional circumstance - Whether establishment of family life in jurisdiction constituted exceptional circumstances – Whether State responsible for delay – Whether appellant could rely on period of delay accrued in bringing appeal subsequently withdrawn by him – Whether appropriate to take into account seriousness of alleged offences – Whether doubt as to whether credit for time already served would be given in requesting State a factor - Bolger v O’Toole [2008] IESC 38 (Unrep, SC, 17/6/2008), Coleman v O’Toole [2003] 4 IR 222, Fusco v O’Dea (No 2) [1998] 3 IR 470 and MB v Conroy [2001] 2 ILRM 311 applied; Kwok Min Wan v Conroy [1998] 3 IR 527 distinguished - Extradition Act 1965 (No 17), ss 47 and 50(2)(bbb) – Respondent’s appeal dismissed (415/06 – Supreme Court – 29/10/08) [2008] IESC 60 Heywood v Attorney General

Coonagh, Aoife 2009 (January/February) GLSI 34 Ryan, Ray Employers’ liability in negligence: recent approaches in the Irish courts Ryan, Des 2008 3 (2) QRTL 1 Library Acquisitions Blanpain, Roger European labour law 11th edition The Netherlands: Kluwer Law International, 2008 W131.5 Eardly, John Employees: know your rights in Irish law Dublin: First Law, 2008 N192.C5 Faulkner, Mary Essentials of Irish labour law Dublin: Gill & Macmillan: 2007 N192.C5 Statutory Instrument Occupational pension schemes (small schemes in wind up exemption from actuarial funding certificate requirements) regulations 2008 SI 532/2008

EUROPEAN LAW Library Acquisitions Blanpain, Roger European labour law 11th edition The Netherlands: Kluwer Law International, 2008

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Hill, Jonathan Cross-border consumer contracts Oxford: Oxford University Press, 2008 W112

EVIDENCE Article Daly, Yvonne Dumb witness 2009 (January/February) GLSI 30 Library Acquisition Heffernan, Liz A DNA database 2008 (18) ICLJ 105

EXTRADITION

European arrest warrant Double criminality - Surrender for prosecution for offence requiring verification of double criminality and offence not requiring verification – Surrender for serving of sentence – Points of objection – Whether respondent fled issuing state – Onus of proof – Absence of averment as to knowledge of prosecution – Whether information in warrant insufficient – Form of warrant –Whether length of sentence imposed evident – Correspondence – Absence of facts necessary to ground offence – Composition of sentence – Whether minimum gravity requirement met – Presumption of compliance with obligations by issuing state – Attorney

General v Dyer [2004] 1 IR 40 and Minister for Justice, Equality and Law Reform v Dunkova [2008] IEHC 156 (Unrep, Peart J, 30/5/2008) considered – European Arrest Warrant Act 2003 (No 45), ss 4, 5, 10, 11, 13, 16, 38 and 45 – Surrender ordered for prosecution regarding offence not requiring double criminality (2008/25EXT – Peart J – 9/7/2008) [2008] IEHC 263 Minister for Justice, Equality and Law Reform v Wroblewski European arrest warrant Onus of proof – Whether respondent in breach of condition of suspension attaching to sentence imposed - Whether respondent fled requesting state - Whether respondent discharged onus of proof – Whether clear circumstances and facts shown to exist why order should not be made – Whether point of objection supported by cogent evidence - Minister for Justice v Tobin [2007] IEHC 15, (Unrep, Peart J, 12/1/2007) distinguished - European Arrest Warrant Act (No 45), ss 10 and 16 - Extradition granted (2007/181Ext – Peart J - 6/5/2008) [2008] IEHC 129 Minister for Justice v Stankiewicz European arrest warrant Points of objection - Whether warrant duly issued under German law - Whether applicant denied fair procedures by refusal to provide certain information - Whether any evidential basis for point of objectionWhether respondent came within s 10(d) of the Act - Meaning to be given to fled in s 10(d) of Act - Delay in proceeding under warrant - Deduction in respect of any period spent in custody on foot of warrant - Whether failure to provide information sought disentitled applicant to order for surrender - Minister for Justice v Tobin [2007] IEHC 15, (Unrep, Peart J, 12/12007), Minister for Justice v O’Fallúin [2008] IEHC 302, (Unrep, Peart J, 8/10/2008) and Rimsa v Governor of Cloverhill Prison [2008] IEHC (Unrep, SC, 23/7/2008) considered - Council Framework Decision 2002/584/JHA, arts 17 and 26 – Extradition Act 1965 (No 17), s 10 - Surrender of applicant ordered (2008/28Ext - Peart J - 15/10/2008) [2008] IEHC 312 Minister for Justice v Abimbola European arrest warrant Points of objection - Whether warrants duly issued - Whether decision to issue arrest warrant contrary to law of Czech Republic – Allegations that provisions of Czech law contrary to Czech constitutional principles - Whether validity of existing Czech legal provisions exclusively matter for domestic legal system - Infringement of fundamental rights - Allegation that Czech system of justice fundamentally unjust, corrupt and incapable of providing fair trial - Unsubstantiated allegations - Standard of proof - Principle of mutual

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recognition – Whether appellants rebutted presumption that issuing state generally respects human rights - Whether evidence adduced cogent, coherent and persuasive European Arrest Warrant Act 2003 (No 45), ss 4A, 10 & 37 - Appeals dismissed - ( 134 & 135/2007 - SC - 6/5/2008) [2008] IESC 30 Minister for Justice v Puta European arrest warrant Third application for surrender - Surrender for prosecution for offence on charge of conspiracy to defraud - Points of objection – Whether underlying domestic warrant spent under English law – Whether warrant spent once arrest by Gardai – Principle of mutual recognition – Whether European arrest warrant enjoys independent validity – Whether court must be satisfied that European arrest warrant duly has been duly issued – Determination of issue of English law – Endorsement for execution in jurisdiction without legal authority – Command in warrant incapable of fulfilment due to closure of court – Delay – Whether failure to observe requirement of urgency and expedition – Absence of evidence of prejudice – Onus on applicant – Res judicata – Estoppel – Principle of finality – Ability to re-issue warrant and recommence surrender procedure – Matter of complaint for issuing member state – O’Rourke v Governor of Cloverhill Prison [2004] 2 IR 456, Minister for Justice v Altaravicius [2006] 3 IR 148, Minister for Justice v Stapleton [2007] IESC 30 [2008] 1 IR 669 and Rimsa v Governor of Cloverhill Prison (Unrep, SC, 23/7/2008) considered - European Arrest Warrant Act 2003 (No 45), ss 10, 13 and 37 – Surrender ordered (2007/115EXT – Peart J – 8/10/2008) [2008] IEHC 302 Minister for Justice, Equality and Law Reform v Ó Fallúin Habeas corpus European arrest warrant – Time limits for surrender – Lapse of time limit - Procedural safeguards - Principles of fundamental justice – Locus standi – Res Judicata - Presumption of constitutionality - Central authority agreed with issuing state to date for surrender outside 10 day period - Necessity - Whether postponement of surrender justified under law - Whether s.

16(5) unconstitutional – Whether section permitted indefinite detention - Whether circumstances beyond control of member state justified extension of surrender date - Whether lawfulness of applicant’s detention res judicata - Objectives and aims of Framework Decision - Expressed intention that surrender take place as soon as possible- Whether circumstances could arise where surrender takes place outside period of ten days from date of final decision on surrender - Whether court order made in knowledge that detention may need to go beyond 10 day period - Whether detention unlawful - DK v Crowley [2002] 2 IR 744 & Air Canada v Attorney General of Canada 222

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DLR 385 considered; Cahill v Sutton [1980] 1 IR 269 distinguished – European Arrest Warrant Act 2003 (No 45), s 16(5) and 18 – Constitution of Ireland 1937, art 40.4 Council Framework Decision 2002/584/JHA, art 23(3) - Application refused (2008/355SS - HC - 2/5/2008) [2008] IEHC 125 Rimsa v Governor of Cloverhill Prison

FAMILY LAW Conflict of laws Maintenance – Recognition of foreign divorce – Lis alibi pendens rule – Parallel proceedings in courts of different member states – Transitional provisions – Whether maintenance order within provision of Brussels Convention or Brussels Regulations – Whether Brussels Convention required Irish courts to recognise judgment of Dutch court in respect of maintenance – Whether courts of member state free to apply rules of private international law where conflict arises – Whether Brussels I Regulations only applied to legal proceedings instituted after 1st March, 2002 – Hoffman v Kreig (Case C-145/86) [1988] ECR I-645 and Firma A Racke v Hauptzollamt Mainz (Case C98/78) [1979] ECR I-69 followed - Jurisdiction of Courts and Enforcement of Judgments Act 1998 (No 52) – Treaty establishing the European Community – Convention on Jurisdiction and Enforcement of Judgments in Civil and Commercial Matters 1968 (Brussels Convention) – Council Regulation (EC) No 44/2001 on Jurisdiction and the Recognition and Enforcement of Judgments in Civil and Commercial Matters (Brussels I) – Council Regulation (EC) No 1347/2000 on Jurisdiction and the Recognition and Enforcement of Judgments in Civil and Commercial Matters of Parental Responsibility for Children of Both Spouses (Brussels II) – Council Regulation (EC) No. 2201/2003 concerning Jurisdiction and the Recognition and Enforcement of Judgments in matrimonial Matters and Matters relating to Parental Responsibility repealing Reg. E.C. 1347/2000 (Brussels II bis) – Respondent’s appeal dismissed (137/2008 – SC 29/7/2008) [2008] IESC 48 T (D) v L (F) Article Long, Eimear The Hague Convention on the protection of children - what’s new?

2008 (4) IJFL 92 Library Acquisition Thomson Round Hall The 6th Round Hall family law conference 2008 papers Dublin: Thomson Round Hall, 2008 N170.C5

FISHERIES Aquaculture licence Aquaculture Licence Appeals Board – Duty to give reasons – Whether Aquaculture Licences Appeals Board obliged to state reasons and considerations for decision – Whether report of technical advisor capable of giving adequate reasons – Whether lack of adequate reasons cured by affidavit evidence – Whether lack of adequate reasons invalidates decision – R v Westminster City Council [1996] 2 All ER 302 approved; Nash v Chelsea College Of Art and Design [2001] EWHC (Admin) 538, (Unrep, English HC, Stanley Burnton J, 11/7/2001) followed; Ní Eilí v EPA (Unrep, SC, 30/7/1999) and Mulholland v An Bord Pleanála (No 2) [2005] IEHC 306, [2006] 1 IR 453 not followed; The State (Abenglen Properties) v Corporation of Dublin [1984] IR 381 applied Fisheries (Amendment) Act 1997 (No 14), s 40 – Fisheries (Amendment) Act 2001 (No 40), s 10 – Relief granted (2007/1303JR & 144COM – Kelly J – 9/9/2008) [2008] IEHC 289 Deerland Construction Ltd v Aquaculture Licence Appeals Board Statutory Instruments Inland fisheries (fixed payment notice) regulations 2008 SI 587/2008 Quality of shellfish waters (transfer of departmental administration and ministerial functions) Order 2008 SI 516/2008 Regional fisheries boards (postponement of elections) order 2008 SI 548/2008

GAMING & LOTTERIES Statutory Instrument Greyhound race track (totalisator) (percentage deduction) regulations 2008 SI 518/2008

GARDA SÍOCHÁNA Article Murphy, Colin On the front line 2009 (January/February) GLSI 37

HEALTH Statutory Instruments Health (in-patient charges) (amendment) regulations, 2008 SI 543/2008

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Health (charges for in-patient services) (amendment) regulations 2008 SI 521/2008 Health (out-patient charges) (amendment) regulations, 2008 SI 544/2008 Health act 2007 (section 103) (commencement) order 2009 SI 27/2009 Health services regulations 2008 SI 519/2008 Medical practitioners act 2007 (commencement) order 2009 SI 40/2009 Public health (tobacco) (registration) regulations 2009 SI 41/2009 Public health (tobacco) (self service vending machines) regulations 2009 SI 42/2009

HEALTH AND SAFETY Improvement notice Case stated – Appeal against improvement notice – Concerns regarding roads not surface dressed – Absence of appropriate control measures - Direction for improvement plan – Improvement notice – Whether roads not surface dressed constitute a ‘workplace’ – Whether roads not workplace as works ceased – Whether incomplete project Whether legislation applicable – Statutory framework – Functions of Health and Safety Authority – Roads authority – Role of county manager – Whether notice inference with statutory competence of county managers – Whether notice interference with statutory entitlements – Statutory interpretation – Penal statute – Strict interpretation – Principle of generalia specialibus non derogant – Absence of undressed road as at date of issuance of notice – Adequacy of notice – Role of authority – Protection of workers – Dominant purpose of exercise of administrative power – Inspector of Taxes v Kiernan [1981] IR 117, Director of Public Prosecutions v Tivoli Cinema Ltd [1991] 2 IR 260, Keane v Western Health Board [2007] 2 IR 555, DPP v Grey [1986] IR 317, National Authority for Safety and Health v Fingal County Council [1997] 2 IR 547, Dundalk Town Council v Lawlor [2005] ILRM 106, Cassidy v Minister for Industry and Commerce [1978] IR 297, Re Crowley [1964] IR 106, Kennedy v Law Society of Ireland (No 3) [2002] 2 IR 458, McDowell v Roscommon County Council (Unrep, Finnegan P, 21/12/2004) and Lynch v Palgrave Murphy [1964] IR 150 considered – Courts (Supplemental Provisions) Act 1961 (No 39), s 52 – Roads Act 1993 (No 14), s 13 and 17 – Road Traffic Act 2004 (No 44), s 10 – Interpretation Act 2005 (No 23), s 5 - Safety Health and Welfare at Work Act 2005 (No 10), ss 2, 34, 65, 66

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and 77 – Safety Health and Welfare at Work (Construction) Regulations 2001 (SI 481/2001) – Questions answered (2007/988SS – Hedigan J – 7/10/2008) [2008] IEHC 304 Cork County Council v HSA

HOUSING

33, [2005] 1 IR 604 considered - Housing Act 1966 (No 21), s 62(3) – European Convention on Human Rights Act 2003 (No 20), ss 3, 4 and 5 – European Convention on Human Rights, articles 6, 8, 13 and 14 – Declaration of incompatibility made (2005/3513p – Laffoy J – 8/5/2008) [2008] IEHC 288 Donegan v Dublin City Council

Housing authority

Article

Notice to quit – Warrant for possession – Dispute on facts – Application to District Court for warrant for possession – Procedure under s.62 of Housing Act 1966 – No requirement on local authority to justify decision to terminate tenancy – Judicial review – Whether interference with right to respect for home – Whether interference in accordance with law – Whether interference has legitimate aim and necessary in democratic society – Whether judicial review adequate remedy where factual dispute exists – Whether legitimate aim pursued by statute – Leonard v Dublin City Council [2008] IEHC 79 (Unrep, 31/3/2008, Dunne J.) distinguished; Connors v UK (2005) 40 EHRR 9, Blečić v Croatia (2005) 41 EHRR 13, Tsfayo v UK [2007] LGR 1 and Dublin City Council v Fennell [2005] IESC 33, [2005] 1 IR 604 considered - Housing Act 1966 (No 21), s 62(3) – European Convention on Human Rights Act 2003 (No 20), ss 3, 4 and 5 – European Convention on Human Rights, articles 6, 8, 13 and 14 – Declaration of incompatibility made (2005/3513p – Laffoy J – 8/5/2008) [2008] IEHC 288 Donegan v Dublin City Council Statutory Instruments Housing act 1966 (compulsory acquisition of land for motorways and service areas, etc) (form of notice) regulations 2008 SI 514/2008 Housing (home choice loan) regulations 2008 SI 535/2008 Housing (standards for rented houses) regulations 2008 SI 534/2008 Housing (transfer of functions) order 2008 SI 582/2008

HUMAN RIGHTS Respect for home Independent hearing – Compatibility with European Convention on Human Rights – Declaration of incompatibility – Legitimate aim – Necessity in democratic society – Procedural safeguards – Whether provision compatible with European Convention on Human Rights – Leonard v Dublin City Council [2008] IEHC 79 (Unrep, 31/3/2008, Dunne J.) distinguished; Connors v UK (2005) 40 EHRR 9, Blečić v Croatia (2005) 41 EHRR 13, Tsfayo v UK [2007] LGR 1 and Dublin City Council v Fennell [2005] IESC

Human rights in Irish prisons Hamilton, Claire (2008) 2 JSIJ 58

IMMIGRATION Asylum Appeal - Judicial review – Application for leave - Country of origin material – Credibility – Applicant previously refused asylum in England – Failure to disclose previous application – Internal inconsistencies – Errors of fact made by respondent as to country of origin information – Extension of time – Burden of proof – Whether error of fact constituted substantial grounds when decision viewed holistically - Imafu v Minister for Justice [2005] IEHC 416 (Unrep, Peart J, 9/12/2005), F v Minister for Justice [2008] IEHC 126 (Unrep, Peart J, 02/05/2008), Silveira v Refugee Appeals Tribunal [2004] IEHC 436 (Unrep, Peart J, 09/07/2004), Z v Minister for Justice [2002] 2 IR 135 and O v Minister for Justice [2008] IEHC 311 (Unrep, Hedigan J, 15/10/2008) applied; Zhuchkova v Minister for Justice [2004] IEHC 414 (Unrep, Clarke J, 26/11/2004), Simo v Minister for Justice [2007] IEHC 305 (Unrep, Edwards J, 04/07/2007) and Horvath v Secretary of State for the Home Department (UNHCR Intervening) [1999] INLR 7 considered; Kramarenko v Refugee Appeals Tribunal [2004] IEHC 101 (Unrep, Finlay Geoghegan J, 02/04/2004) distinguished - Refugee Act 1996 (No 17), ss 11A and 16 – Immigration Act 2003 (No 26), s 7 – Leave refused (2006/1277JR – Hedigan J – 30/10/2008) [2008] IEHC 339 E (PI) v Refugee Appeals Tribunal Asylum Credibility – Mention of internal relocation in tangential manner in decision of respondent – Whether mention of internal relocation caused unfairness to applicant – Whether obligation to furnish applicant with Operational Guidance Note – Whether fair procedures - Olatunji v Refugee Appeals Tribunal [2006] IEHC 113 (Unrep, Finlay Geoghegan J, 07/04/2006), O’Keeffe v An Bord Pleanála [1993] 1 IR 39 and Ogunniyi v Minister for Justice, Equality and Law Reform [2008] IEHC 307 (Unrep, Hedigan J, 9/10/2008) considered - Refugee Act 1996 (No 17), s 16 – Relief refused (2006/673JR – Hedigan J - 4/11/2008) [2008] IEHC 343 W (EA) v Refugee Appeals Tribunal

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Asylum Credibility of applicant – Alleged failure to take account of documentation – Alleged failure to adequately consider medical report – Substantial grounds - Obligation to take account of all relevant statements and documentation presented - Whether for tribunal member to decide whether or not document merits specific reference - Whether obligation on decision maker to refer to every aspect of evidence or to identify all documents within written decision - Whether applicant produced any direct or inferential evidence that tribunal member did not take account of documents submitted - Whether medical report of significant probative value - Assessment of probative or corroborative value - Whether any irrationality in assessment of credibility - Khadazi v Refugee Appeals Tribunal (Unrep, Gilligan J, 19/04/2005) distinguished; Muanza v Refugee Appeals Tribunal (Unrep, Birmingham J, 8/2/2008), Banzuzi v Minister for Justice [2007] IEHC 2, (Unrep, Feeney J, 18/1/2007), GK v Minister for Justice [2002] 2 IR 418, ME v Refugee Appeals Tribunal [2008] IEHC 192, (Unrep, Birmingham J, 27/6/2008 ), Bujari v Minister for Justice, [2003] IEHC 18 (Unrep, Finlay Geoghegan J, 7/5/2003) and Imafu v Minister for Justice [2005] IEHC 416, (Unrep, Peart J, 9/12/2005) considered - Illegal Immigrants (Trafficking) Act 2000 (No 29), s 5 - European Communities (Eligibility for Protection) Regulations 2006 (SI 518/2006), art 5 - Leave refused (2007/66JR – Hedigan J - 15/10/2008) [2008] IEHC 310 A (J) v Refugee Appeals Tribunal Asylum Judicial review – Alternative remedy - Appeal - Decision of Refugee Appeals Commissioner – Existence of alternative remedy - Whether complaints capable of being dealt with on appeal - Whether judicial review appropriate remedy - Whether applicant demonstrated clear and compelling case that injustice done not capable of being remedied on appeal - Whether breach of fair procedures at initial stage per se entitled applicant to judicial review - Whether existence of statutory right of appeal fundamental reason not to grant judicial review – Whether court should intervene before statutory asylum process completed Stefan v Minister for Justice [2001] 4 IR 203, State (Abenglen Properties Ltd) v Dublin Corporation [1984] IR 381, Kayode v Refugee Applications Commissioner [2005] IEHC 172 (Unrep, O’Leary J, 25/4/2005) and Z v Minister for Justice [2008] IEHC 36 (Unrep, McGovern J, 6/2/2008) considered - Fair procedures - Quality of decision rather than defective application of legal principles - Whether officer failed to specifically put relevant information to applicant – Audi alteram partem - Failure to call back applicant after interview - Anochie v Refugee Applications Commissioner [2008] IEHC 261

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(Unrep, Birmingham J, 2/7/2008) followed; Idiakheua v Minister for Justice [2005] IEHC 150, (Unrep, Clarke J, 10/5/2005), Olatunji v Refugee Appeals Tribunal [2006] IEHC 113 (Unrep, Finlay Geoghegan J, 7/4/2006), Moyosola v Refugee Applications Commissioner [2005] IEHC 218, (Unrep, Clarke J, 23/5/2005), PS (a minor) v Minister for Justice [2008] IEHC 235, (Unrep, McMahon J, 11/7/2008) and DH v Refugee Applications Commissioner [2004] IEHC 95, (Unrep, Herbert J, 27/5/2004) considered Whether assessment of credibility was flawed – Onus of proof on applicant - Whether decision makers best placed to make assessments as to credibility Imafu v Minister for Justice [2005] IEHC 416 (Unrep, Peart J, 9/12/2005), Bujari v Minister for Justice [2003] IEHC 18, (Unrep, Finlay Geoghegan J, 7/5/2003) and Banzuzi v Minister for Justice [2007] IEHC 2 (Unrep, Feeney J, 18/1/2007) considered - Factors to which decision maker is required to have regard when assessing the credibility of applicant - Ajoke v Refugee Applications Commissioner (Unrep, Hanna J, 30/5/2008) and Akpata v Refugee Applications Commissioner (Unrep, Birmingham J, 9/7/2008) considered - Refugee Act 1996 (No 17) , s 11B - Leave refused (2006/1065JR – Hedigan J - 9/10/2008) [2008] IEHC 308 NN (B) v Minister for Justice Asylum Judicial review – Alternative remedy - First instance decision – Fair procedures - Delay of six months – Appeal instituted – Applicant associated with political party in Iran – Applicant asserting lack of legal advice and medical problems as cause of delay – First safe country – Certain matters not put to applicant - Whether appropriate to extend time – Whether substantial grounds – Whether breach of fair procedures - Whether appeal adequate remedy – Whether applicant entitled to primary decision in accordance with fair procedures – Whether applicant estopped having invoked appeal - GK v Minister for Justice [2002] 1 ILRM 81, Re the Illegal Immigrants (Trafficking) Bill 1999 [2000] 2 IR 360 and Stefan v Minister for Justice [2001] 4 IR 203 applied; Nguedjdo v Refugee Applications Commissioner (Unrep, White J, 23/7/2003), Idiakheua v Minister for Justice [2005] IEHC 150 (Unrep, Clarke J, 10/5/2005), Kouaype v Minister for Justice [2005] IEHC 380 (Unrep, Clarke J, 9/11/2005), Kayode v Refugee Applications Commissioner [2005] IEHC 172 (Unrep, O’Leary J, 25/4/2005), Akpomudjere v Minister for Justice [2007] IEHC 169 (Unrep, Feeney J, 1/2/2007), McGoldrick v An Bord Pleanala [1997] 1 IR 497 and Chukwuemeka v Minister for Justice (Unrep, Birmingham J, 7/10/2007) considered - Illegal Immigrants (Trafficking) Act 2000 (No 29) s 5 - Refugee Act 1996 (No 17), ss 2, 11, 13 & 16 – Leave granted (2006/1521JR - Herbert J - 08/05/2008) [2008] IEHC 138 F (A) v Minister for Justice, Equality and Law Reform

Asylum Judicial review – Leave - Extension of time - Decision on first instance and appeal challenged – Mother and infant applicant – Credibility – State protection – Internal relocation – Seven month delay since first instance decision - Whether good and sufficient reason for extending time – Whether extension of time should ever be refused in respect of minor – Whether court’s assessment of strength of case a factor in deciding to extend time – Whether failure to specifically and individually address fears of infant applicant Ojuade v Refugee Applications Commissioner (Unrep, Peart J, 2/5/2008) distinguished – Extension time refused (1237 JR/2006 – Hedigan J 16/10/2008) [2008] IEHC 314 A (K) v Refugee Applications Commissioner Asylum Judicial review – Leave - Availability of appeal – Alleged want of fair procedures – Alleged failure to put doubts to applicant – Alleged absence of proper analysis – Finding on credibility – Alleged failure to give reasons – Certiorari quashing recommendation of commissioner – Injunction – Citizen of Uganda with right of residence in Nigeria – Claim of well founded fear of persecution in Uganda and Nigeria – Fear of religious persecution in Uganda – Fear of female genital mutilation in Nigeria – Failure to properly identify country of origin information –Whether finding based on ‘gut feeling’ – Whether failure to employ forward looking test – Alleged failure to have regard to UNCHR handbook – Alleged failure to consult relevant country of origin information – Whether concerns could be best addressed in context of appeals process – Stefan v Minister for Justice [2001] 4 IR 2003, Voke Akpomudjere v Minister for Justice (Unrep, Feeney J, 1/2/2007), Akomoj v Minister for Justice (Unrep, Feeney J, 1/2/2007), Idiakheua v Minister for Justice [2005] IEHC 150 (Unrep, Clarke J, 10/5/2005), Re Haughey [1971] IR 217, Zhuchkova v Minister for Justice (Unrep, Clarke J, 26/11/2004), Da Silveria v Refugee Appeals Tribunal (Unrep, Peart J, 9/7/2004) and Z(V) v Minister for Justice [2002] 2 IR 135 considered – Refugee Act 1996 (No 17), ss 2 and 13 – Leave refused (2006/1012JR – Edwards J – 30/7/2008) [2008] IEHC 270 O (SMI) (An Infant) v Minister for Justice, Equality and Law Reform Asylum Judicial review – Leave - Country of origin material – State protection – Credibility – Time limit - Whether failure to adequately assess if internal relocation available to applicant – Whether respondent’s failure to mention document evidenced failure to take into account all material – Whether error of fact - Whether applicant acted with all due expedition - Whether appropriate to extend

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time - Banzuzi v Refugee Appeals Tribunal [2007] IEHC 2 (Unrep, Feeney J, 18/01/2007), GK v Minister for Justice [2002] 2 IR 418, A v Refugee Appeals Tribunal [2007] IEHC 169 (Unrep, Feeney J, 09/02/2007), DK v Refugee Appeals Tribunal [2006] IEHC 132 [2006] 3 IR 368 and E v Refugee Appeals Tribunal [2008] IEHC 192 (Unrep, Birmingham J, 27/06/2008) applied; Khazadi v Minister for Justice (Unrep, Gilligan J. 19/4/2007) distinguished - European Communities (Eligibility for Protection) Regulations 2006 (SI 518/2006), reg 5(1)(b) – Leave refused (2007/1024JR – Hedigan J – 16/10/08) [2008] IEHC 313 O (K) v Minister for Justice, Equality and Law Reform Asylum Judicial review – Leave - Decision of RAT – Delay – Extension of time – Alleged breach of fair procedures – Whether irrelevant material taken into consideration – Whether failure to take all relevant material into consideration - Assessment of credibility – Whether substantial grounds for review – Applicable test – Whether test of anxious scrutiny appropriate – Departing from decision of court of coordinate jurisdiction – Whether errors in assessment of credibility – Whether manifest errors of fact - Whether decision fundamentally flawed – Whether wrongful reliance on matters within personal knowledge – Opportunity to deal with apparent inconsistencies – Failure to address issue during hearing – Whether want of credibility relied upon in decision – Test for persecution – Meaning of persecution – Need to show sustained or systematic risk of harm – Country of origin information – O’Keeffe v An Bord Pleanála [1993] 1 IR 39 and The State (Keegan) v Stardust Compensation Tribunal [1986] IR 642 applied - COI v Minister for Justice (Unrep, McGovern J, 2/3/2007), R v Home Secretary (ex parte) Boonibyo [1996] QB 768, BJN v Minister for Justice (Unrep, McCarthy J, 18/1/2008), Gashi v Minister for Justice (Unrep, Clarke J, 3/12/2004), Idiakhua v Minister for Justice (Unrep, McCarthy J, 10/5/2005), AO v Minister for Justice [2003] 1 IR 124, Z v Minister for Justice [2002] 2 ILRM 215, Laurentiu v Minister for Justice [1999] 4 IR 26, R (Mahmood) v Secretary of State for the Home Department [2001] 1 WLR 840, Irish Trust Bank Limited v Central Bank of Ireland [1976] ILRM 50, Imafu v Minister for Justice (Unrep, Clarke J, 27/5/2005), Carciu v Refugee Appeals Tribunal (Unrep, Finlay Geogeghan J, 4/7/2003), Bisong v Refugee Appeals Tribunal (Unrep, O’Leary J, 25/4/2005), Tabi v Refugee Appeals Tribunal (Unrep, Peart J, 27/7/2007), Kikumbi v Refugee Applications Commissioner (Unrep, Herbert J, 7/2/2007), K v Refugee Appeals Tribunal [2005] 4 IR 321, Memshi v Refugee Appeals Tribunal (Unrep, Peart J, 25/6/2003), NK v Refugee Appeals Tribunal [2005] 4 IR 321, R v Immigration Appellate Authority, ex parte Mohammed (Unrep, Newman J, 14/10/1999), Re D [1995] 4

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All ER and Rostas v Refugee Appeals Tribunal (Unrep, Gilligan J, 31/7/2003) considered – Leave refused (2006/861JR – McCarthy J – 31/7/2008) [2008] IEHC 294 K (M) v Refugee Appeals Tribunal Asylum Judicial review – Leave - Right to full oral hearing on appeal - Adverse credibility finding – Certiorari quashing recommendation of commissioner –Libyan national –Application of benefit of doubt where elements of claim not susceptible to proof – Country of origin information – Whether absence of analysis – Possibility of correcting error on appeal – Whether incorrect legal test applied – Whether failure to apply forward looking test – Whether want of fair procedures – Whether failure to consider applicant’s explanation for failing to seek asylum in United Kingdom – Whether failure to have regard to specific factors listed in Act – Whether obligation to address each factor specifically - Da Silveria v Refugee Appeals Tribunal (Unrep, Peart J, 9/7/2004), Botan v Refugee Appeals Tribunal (Unrep, Feeney J, 30/6/2006), Imafu v Minister for Justice (Unrep, Peart J, 9/12/2005) and Chukwuemeka v Minister for Justice (Unrep, Birmingham J, 7/10/2007) considered – Refugee Act 1996 (No 17), ss 2 and 11 – Leave refused (2006/1015JR – McMahon J – 31/7/2008) [2008] IEHC 273 L (E) v Minister for Justice, Equality and Law Reform

origin information - Alleged error of fact –Failure to specify alleged error in statement of grounds - Imoh v Refugee Appeals Tribunal [2005] IEHC 220 (Unrep, Clark J, 24/6/2005) and Traore v Refugee Appeals Tribunal [2004] IEHC 606 (Unrep, Finlay Geoghegan J, 14/5/2004) distinguished- Burden of proof - Whether any provision of factual evidence by applicant of incidents of actual anti-semitic persecution of himself - Responsibility of claimant to produce documentation in support of case - Z v Minister for Justice [2002] 2 IR 135 considered; GOB v Minister for Justice [2008] IEHC 229 (Unrep, Birmingham J, 3/6/2008) followed - Leave refused (2006/ 1243JR – Hedigan J – 15/10/2008) [2008] IEHC 311 O (KO) v Minister for Justice Equality and Law Reform Deportation

Refugee Appeals Tribunal – Breach of fair procedures – Duty to give reasons – Whether tribunal erred in failing to allow submissions based on earlier linked case – Whether tribunal ought thereafter to have reopened case to hear witness – Whether tribunal failed to address material factors in reaching decision – Whether tribunal failed to give adequate reasons for decision - M v Refugee Applications Commissioner (Unrep, Smyth J, 25/6/2002) distinguished; F v Refugee Appeals Tribunal [2005] IEHC 423, (Unrep, O’Leary J, 21/12/2005) followed – Relief granted (2006/636JR – 4/6/2008) [2008] IEHC 214 N (J) v Minister for Justice

Delay - Judicial review – Leave - Application for extension of time – Minor - Prescribed period of fourteen days – Application out of time by 23 months - Factors to be taken into account –Whether good and sufficient reason for extending time for commencement of proceedings - Whether applicant disadvantaged in relation to the availability of legal advice Whether distinction in case of adult applicant and minor applicant - Whether court should consider merits of case sought to be made - Whether court should be satisfied that grounds put forward are arguable or have some chance of success - Whether court could refuse to extend time even where grounds are substantial grounds - Re Illegal Immigrants (Trafficking) Bill 1999 [2000] 2 IR 360 and Imafu v Minister for Justice [2005] IEHC 416, (Unrep, Peart J, 9/12/2005) considered - Illegal Immigrants (Trafficking) Act 2000 (No 24), s 5 - Deportation - Revocation – Delay – Proportionality – Whether onus on applicant to place all relevant information before Minister - Botusha v Minister for Justice (Unrep, Peart J, 29/10/2003) distinguished and Kouaype v Minister for Justice [2005] IEHC 380, (Unrep, Clarke J, 9/11/2005) followed - Leave to apply for judicial review refused (2006/651JR Peart J – 2/5/2008) [2008] IEHC 126 F (B) v Minister for Justice

Asylum

Deportation

State protection – Well founded fear of persecution – Whether error of law as to state protection - Whether test of state protection correctly applied - Whether adequate state protection available in country of origin – Whether claimant demonstrated no adequate state protection - Failure to make complaint to police – Canada (AG) v Ward [1993] 2 RCS 689 considered, DK v Refugee Appeals Tribunal [2006] IEHC 132, [2006] 3 I.R. 368 and HO v Refugee Appeals Tribunal [2007] IEHC 299 (Unrep, Hedigan J, 19/7/2007) considered - Fair procedures - Treatment of country of

Humanitarian leave to remain - Delay – Family settled within State – Entitlement to have duration of residence taken into account –– Alleged factual misrepresentations regarding character of father – Alleged failure to consider circumstances of children included in application of mother – Alleged failure to properly consider medical history of mother – Whether lack of fair procedures – Kouaype v Minister for Justice [2005] IEHC 380 (Unrep, Clarke J, 9/11/2005), AA v Minster for Justice[2005] IEHC 393 [2005] 4 IR 564, Lupascu v Minister for Justice [2004] IEHC 400 (Unrep, Peart J, 21/12/2004), M(K) v Minister

Asylum

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for Justice [2007] IEHC 234 (Unrep, Edwards J, 17/7/2007), Agbonlahor v Minister for Justice [2007] IEHC 166 [2007] 4 IR 309, L & O v Minister for Justice [2003] 1 IR 1, Oguekwe v Minister for Justice [2008] IESC 25 (Unrep, SC, 1/5/2008), Cosma v Minister for Justice [2006] IEHC 36 [2007] 2 IR 133 and N v Home Secretary [2005] 2 AC 296 considered – Refugee Act 1996 (No 17), s 5 – Immigration Act 1999 (No 22), s 3 – Claims dismissed (2006/155JR – Edwards J – 29/7/2008) [2008] IEHC 269 S (V) v Minister for Justice, Equality and Law Reform Deportation Humanitarian leave to remain – Impact of deportation order - Balancing exercise - Fair procedures - Whether due and proper consideration of children’s constitutional and convention rights - Proportionality – Welfare of children - Integrity of State immigration laws - Whether proposed deportation interfered with applicant children’s rights to reside in State or have society, care and company of parents - Rights of member states to expel and deport foreign nationals – Discretion of Minister - Standard of review – Test of anxious scrutiny - Respect for asylum and immigration system – Amadasun v Minister for Justice [2004] IEHC 378, [2007] 3 IR 421, Baby O v Minister for Justice [2002] 2 IR 169, Kouaype v Minister for Justice [2005] IEHC 380, (Unrep, Clarke J, 9/11/2005), Nnyanazi v United Kingdom (Unrep, ECHR, 8/4/2008), R (Razgar) v Secretary of State for the Home Department [2004] 1 AC 368, Bensaid v United Kingdom (Unrep, ECHR, 6/2/2001), HI v Minister for Justice [2007] IEHC 447 (Unrep, Hedigan J, 13/12/2007), SM v Refugee Applications Commissioner [2007] IEHC 290 (Unrep, Peart J, 27/7/2007), GO v Minister for Justice [2008] IEHC 190, (Unrep, Birmingham J, 19/6/2008), Dada v Minister for Justice [2006] IEHC 140 (Unre, O’Neill J, 3/5/2006) and Dimbo v Minister for Justice [2006] IEHC 344, (Unrep, Finlay Geoghegan J, 14/11/2006) considered; Oguekwe v Minister for Justice [2008] IESC 25 (Unrep, SC, 1/5/2008) distinguished; Oghosasere v Minister for Justice [2007] IEHC 453 (Unrep, Hedigan, 13/12/2007), AO v Minister for Justice [2003] 1 IR 1, Pok Sun Shum v Minister for Justice [1986] ILRM 593 and IS v Minister for Justice [2007] IEHC 398, (Unrep, Dunne, 30/11/2007) followed - Constitution of Ireland 1937, art 40.3.1° - Relief refused (2007/1372JR - Hedigan J - 9/10/2008)[2008] IEHC 307 O (OL) (an infant) v Min for Justice Deportation Judicial review - Leave – Interlocutory injunction restraining deportation – Turkish national – Fear of persecution – Conscientious objector to military service – Application for revocation – Newspaper articles detailing difficulties endured – Intention to marry Irish citizen – Whether failure to adequately consider

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newspaper articles – Whether failure to consider right to subsidiary protection – Need to show new circumstances – Whether failure to consider family rights under Constitution – Onus on applicant to present relevant facts - Whether irrational that denial of rights that would be available where wife national of another EU Member State – Obligation to comply with State – Credibility – Bona fides - G v DPP [1994] 1 IR 374 and GO v Minister for Justice, Equality and Law Reform (Unrep, Clarke J, 19/2/2008) applied - NH v Minister for Justice (Unrep, Feeney J, 27/7/2007), Metock v Minister for Justice (C-127/08) and Pok Sun Shum v Minister for Justice [1986] ILRM 593 considered – Council Directive 2004/83/EC - Immigration Act 1999 (No 22), s 3 - Illegal Immigrants (Trafficking) Act 2000 (No 29), s 5 – Criminal Justice (UN Convention Against Torture) Act 2000, s 4 – European Communities (Eligibility for Protection) Regulations (SI 518/2006) - Leave refused (2008/1013JR – Hedigan J – 9/10/2008) [2008] IEHC 306 Y (AM) v Minister for Justice, Equality and Law Reform Library Acquisition Jackson, David Immigration law and practice 4th ed Haywards Heath: Tottel Publishing Ltd, 2008 C199

INJUNCTION Interlocutory injunction Principles governing grant - Balance of convenience - Presumption of constitutionality – Whether court should be slow to prevent public body from exercising statutory responsibility - Effect of grant of injunction on electorate – Whether rights of electorate prejudiced – Constitution of Ireland 1937, arts 28(2) and 28(5) - Local Government Act 2001 (No 37), s 19 - Interlocutory relief refused (2008/3377P - Sheehan J - 10/6/2008) [2008] IEHC 172 O’Doherty v Attorney General & Limerick Co Co Interlocutory injunction Principles - Common formulations of test - Whether plaintiff established fair issue to be tried - Consideration of strength of case at interlocutory stage - Whether Irish law precluded court from having regard to relative strengths of case after established that fair question raised - Whether plaintiffs’ prospects of success remote - Campus Oil v Minister for Industry (No. 2) [1983] IR 88 followed; G & T Crampton Ltd v Building and Allied Trades Union (Unrep, Laffoy J, 20/11/1997) distinguished; Quigley v Beirne [1955] IR 62, Esso Petroleum Co (Ir) Ltd v Fogarty [1965] IR 531, TMG Group Ltd v Al Babtain Trading (Unrep, SC, 28/3/1980), Rex Pet Foods Ltd v Lamb Brothers (Dublin) Ltd

(Unrep, 26/8/1982), Series 5 Software Ltd v Clark [1996] 1 All ER 853, B & S Ltd v Irish Auto Trader Ltd [1995] 2 IR 142, Westman Holdings Ltd v McCormack [1992] 1 I.R. 151, Symonds Cider v Showerings (Ireland) Ltd [1997] 1 ILRM 481 and American Cyanamid v Ethicon Ltd [1975] AC 396 considered -Industrial Relations Act, 1990 (No 19), s 11(1) - Application for interlocutory injunctive relief refused (2008/3184P – Edwards J - 1/5/2008) [2008] IEHC 147 Chieftan Construction Ltd v Ryan

INSURANCE Motor Insurance Motor Insurance Bureau of Ireland - Road traffic accident - Uninsured driver – Duty to indemnify - Whether Motor Insurance Bureau of Ireland as matter of domestic law obliged to compensate – European Union Legislative Framework - Whether Motor Insurance Bureau of Ireland “emanation of the State” - Status of Motor Insurance Bureau of Ireland and relationship with State - Jurisprudence of European Court of Justice - Applicable test – Whether Directive directly enforceable against MIBI - Whether Directive had direct effect against Motor Insurance Bureau of Ireland – Whether MIBI responsible for proper implementation of Directive - Delargy v Minister for Environment [2005] IEHC 94, (Unrep, Murphy J, 18/3/2005) distinguished; Foster v British Gas Plc [1990] ECR 3313, Evans v Secretary of State for the Environment [2003] ECR 4447, Collino and Chiappero [2000] ECR 6659, Rieser Internationale Transporte [2004] ECR 1477, Adidas-Salomon and Adidas Benelux [2003] ECR 12537; Pfeiffer [2004] ECR 8834, Kampelmann v Landschastsverband Westfalen-Lippe [1997] ECR 4907, Haim v Kassenzahnrtzliche Vereinigung Nordrhein [2000] ECR 5123, Konle v Austrian Republic [1999] ECR 3099, Mighell v Reading [1999] Lloyd’s Rep IR 30, White v White [1999] 1 CMLR 1251, Byrne v MIB [2007] 2 All ER 499, Dublin Bus v MIBI (Unrep, CC, McMahon J, 29/10/1999), Withers v Delaney (Unreported, CC, McMahon J, 9/3/2001), NUT v St Mary’s Church of England Junior School [1997] 3 CLMR 630, Rolls Royce v Doughty [1992] ICR 538, Riksskatteverket v Gharehveran [2001] ECR 7687, Francovich v Italy [1991] ECR 5357 and Wagner Miret v Fondo de Garanatia Salarial [1993] ECR 6911 considered - Road Traffic Act 1961 (No 24), ss 56 and 65(1) - European Communities (Road Traffic) (Compulsory Insurance) (Amendment) Regulations 1992 (SI 347/1992), art 7 - Council Directive 72/166/EEC - Council Directive 84/5/EEC - Council Directive 90/232/EEC – Motor Insurance Bureau of Ireland Agreement 1988, cl 3(7) and 4(1) - Application granted (1997/10802P - Birmingham J - 31/1/2008) [2008] IEHC 124 Farrell v Whitty

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Library Acquisition Legh-Jones, Nicholas MacGillivray on insurance law 11th edition London: Sweet & Maxwell, 2008 N290 Statutory Instrument Insurance act 1989 (regulation of reinsurance) (commencement) order 2008 SI 520/2008

INTERNATIONAL LAW Library Acquisitions Born, Gary B International commercial arbitration 3rd ed London: Kluwer Law International, 2009 C1250 Council of Europe International justice for children Strasbourg Cedex: Council of Europe, 2008 N176

JUDICIAL REVIEW Abuse of process Conviction – Summary trial – Cruelty to animals – Lay litigant - Attendance of witness not secured by State – Failure to seek adjournment of trial on this grounds - Applicant banned from keeping all animals – Applicant asserting breach of Convention rights – Alleged breach of constitutional rights already rejected in other proceedings – Rule in Henderson v Henderson – District Court Order invalid in part - Whether prosecution in summary case obliged to secure attendance of all witnesses in respect of whom statement served on defendant – Whether proceedings unfair – Whether possible to challenge on basis of Convention right where challenge on basis of Constitutional right already defeated – Whether legislative sanctions proportionate – Whether District Court order severable – Whether appropriate to remit matter - Bowes v Judge Devally [1995] 1 IR 315 applied - Control of Dogs Act 1986 (No 32), ss 16 & 18 – Protection of Animals Act 1911 (1911 1 & 2 Geo 5, c 27) – European Convention on Human Rights, art 8 – Constitution of Ireland 1937, art 40 – Relief refused (2008/179JR – O’Neill J 16/10/2008) [2008] IEHC 318 Sfar v District Judge Brennan Certiorari Firearm certificate – Refusal - Whether decision ultra vires and without any basis in law - Bases upon which superintendent can make decision to refuse firearm certificate - Application by bona fide recreational shooting enthusiast – Reasons given for refusal - Whether good

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reason for applicant requiring licence – Danger to public safety - Whether any provision which entitled respondent to consider applicant’s suitability in relation to particular weapon where certificates were held in respect of others - Whether public safety peace could be endangered by type of firearm - East Donegal Livestock Mart Ltd v Attorney General [1970] IR 312, Dunne v Donohoe [2002] 2 IR 533 and Mishra v Minister for Justice [1996] 1 IR 189 considered - Firearms Act 1925 (No 7), ss 3, 4(a) and 5 – Certiorari granted (2006/299JR – Peart J - 2/5/2008) [2008] IEHC 127 Goodison v Sheahan Leave Application to set aside ex parte grant of leave – Failure to inform court of statutory provision – Failure to inform court of notice party’s offer – Whether leave would have been granted if matters disclosed to court - Gordon v DPP [2003] 1 ILRM 81 applied – Solicitors (Amendment) Act 1960 (No 37), s 7 – Leave set aside (2006/511JR – O’Neill J – 14/10/2008) [2008] IEHC 317 Kelly v Solicitors Disciplinary Tribunal Articles Daly, Paul “Political questions” and judicial review in Ireland (2008) 2 JSIJ 116 Delany, Hilary The relevance of the availability of an alternative remedy in judicial review proceedings 2009 ILTR 10 Library Acquisition Delany, Hilary Judicial review of administrative action: a comparative analysis 2nd ed Dublin: Thomson Round Hall, 2009 M306.C5

LANDLORD AND TENANT Lease Change of use clause - Application for change of use from supermarket to high quality food hall - Inconsistent with existing user clause in lease – Proper construction of clause - Mandated obligations on landlord for consideration in change of use application - Purpose of refusal - Whether consent of landlord unreasonably withheld - True motive for refusal of consent – Whether improper factors taken into account - Whether refusal means for exerting leverage - Whether proffered reason incompatible with text of clause – Justification - Bona fide reasons – Whether refusal contrary to terms of lease - Bromley Park Garden Estates Ltd v Moss [1982] 1 WLR 1019 and Design Progression Ltd v Thurloe Properties Ltd [2004] EWHC 324 (Ch) [2005] 1 WLR 1 considered - Declarations granted (2007/5367P & 2007/101COM - Clarke J - 23/4/2008) [2008] IEHC 114 Dunnes Stores (Ilac Centre) Ltd v Irish Life Assurance plc & O’Reilly

LEGAL AID Civil litigation Legal aid scheme – Financial eligibility for legal advice and aid – Refusal of legal aid – Disposable income – Allowances – Dependent allowance – Independent means of support – Whether regulation correctly interpreted – Whether discretion to provide legal aid or advice without reference to financial resources – Whether discretion fettered – Limited nature of powers Civil Legal Aid Regulations 1996 (SI 273/2006), reg 16 – Civil Legal Aid Act 1995 (No 32), s 29(2) – Claim dismissed (2007/1542JR – Edwards J – 6/10/2008) [2008] IEHC 300 Monahan v Legal Aid Board

LEGAL HISTORY

Land Law

Library Acquisition

Adverse possession

Kleineke, Hannes Parliamentarians at law: select legal proceedings of the long fifteenth century relating to parliament Oxford: Blackwell Publishing, 2008 L401

Boundary dispute – Adjoining landowners - Trespass – Nuisance - Principles applicable in relation to determining boundaries - Rules of construction of a deed – Role of map – Whether any evidence adduced in relation to adverse possession - Wibberley Building Limited v Insley [1999] 1 WLR 894, O’Donnell v Ryan 4 ICLR 44, Topliss v Green [1992] EGCS 20, Boyd Gibbins Ltd v Hockham [1966] 199 EG 229, Kenny v La Barte [1902] 2 IR 63 and Cook v JD Wetherspoon plc [2006] 2 P & CR 18 considered – Plaintiff ’s claim dismissed (2007/3511PHedigan J- 6/10/2008) [2008] IEHC 301 McCoy v McGill

LEGAL PROFESSION Articles Bell, Even Judicial qualities: illustrations from past lives (2008) 2 JSIJ 18 Boyle, David P Ethics and professional practice issues in an in-house context 2009 ILTR 33

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Cahillane, Laura Judicial discipline: where do we stand? A consideration of the Curtin case 2009 ILTR 26

Health Act 2001 (No 25), ss 9, 12, and 14 – Detention found to be lawful (2008/1245SS – Hedigan J – 18/8/2008) [2008] IEHC 283 W (F) v James Connolly Memorial Hospital

Lysaght, Charles Competition authority report on solicitors and barristers (2008) 2 JSIJ 159

Article

Murray, John L Judicial cosmopolitanism: comparative law in a globalised world (2008) 2 JSIJ 1 Rowe, David Batten down the hatches 2009 (January/February) GLSI 20 Library Acquisition Pannick, David I have to move my car Oxford: Hart Publishing: 2008 L241

MEDIATION Article Nolan, David Mediation and the 2004 civil liability and courts act 13 (6) BR 132

MEDICAL LAW Statutory Instruments Medical practitioners act 2007 (commencement) order 2009 SI 40/2009 Medicinal products (control of placing on the market) regulations 2007 (amendment) regulations 2009 DIR 2001-83 SI 3/2009 Medicinal products (control of wholesale distribution) regulations 2007 (amendment) regulations 2009 DIR/2001-83, REG/1394-2007 SI 2/2009

MENTAL HEALTH Detention Involuntary patient – Legality of detention – Release – Examination – Independent judgment – Applicant detained by gardaí upon release from involuntary detention – Gardaí informed by applicant’s psychologist that applicant suffering from mental disorder – Whether respondent precluded from being an informant to gardaí – Whether gardaí had reasonable belief – Whether decision independent – Whether medical advisor exercised independent judgment – Mental

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50, 127 & 138 – Leave refused (2006/1211JR – O’Neill J – 24/7/2008) [2008] IEHC 316 O’Regan v An Bórd Pleanála Protected structures

PENSIONS

Upgrading of railway tracks and signals – Commencement of works - Notice proposing addition of railway station to record of protected structures - Challenge to decision that mast not exempted development Requirements for protection of protected structures – Exemptions for developments connected with railway lines – Whether exemption removed where works carried out to proposed protected structure – Construction of legislation – Literal interpretation – Whether different construction mandated by Interpretation Act – Whether section obscure or ambiguous – Whether literal interpretation would be absurd or fail to reflect plain intention of legislature – Status of development commenced as exempted development – Prospective application of statute – Presumed intention behind legislation – Fairness – Appropriate approach where legislation silent – Whether single integrated development – Whether preclusion of completion unjust - Maye v Sligo Borough Council [2007] 4 IR 678, Cork County Council v Shackleton (Unrep, Clarke J, 19/7/2007), Glenkerrin Homes v Dun Laoghaire Rathdown Co Co (Unrep, Clarke J, 26/4/2007), Kenny v An Bórd Pleanála (No 1) [2001] 1 IR 565 and Hamilton v Hamilton [1982] IR 466 considered - Planning and Development Act 2000 (No 3), ss 4, 5, 57, 59, 60, 69, 70, 71 and 80 – Planning and Development Regulations 2001 (SI 600/2001), class 23 – Decision quashed (2006/243JR – Clarke J – 19/6/2008) [2008] IEHC 295 CIE v An Bórd Pleanála

Statutory Instrument

Regeneration

Occupational pension schemes (small schemes in wind up exemption from actuarial funding certificate requirements) regulations 2008 SI 532/2008

Dublin docklands - Statutory framework – Planning scheme – Type of development - Whether proposed development consistent with scheme - Certificates granted that proposed development consistent with planning scheme Impact of planning scheme - Whether decision ultra vires – Breach of fair procedures - Absence of specific provisions as to how function should be exercised - Certificate procedure – Standard of review - Nature and statutory purpose of decision – Bias - Adjudicative function of respondent –Whether function must be exercised to avoid any apprehension of bias - Attorney General (McGarry) v Sligo County Council [1991] 1 I.R. 99, Tennyson v Corporation of Dun Laoghaire [1991] 2 IR 527, O’Keeffe v An Bord Pleanála [1993] 1 IR 39, Grianán an Aileach Centre v Donegal County Council (No. 2) [2004] 2 IR 625, Re XJS Investments Ltd [1986] IR 750 and Steeples v Derbyshire County Council [1985] 1 WLR 256 considered; Spin Communications Ltd v Independent Radio and Television Commission [2001] 4 IR 411 and Radio Limerick One Ltd v Independent Radio and Television Commission [1997] 2 IR 291

Prison psychiatric inreach and court liaison services in Ireland O’Neill, Conor (2008) 2 JSIJ 147

MOTOR INSURANCE Library Acquisition Department of Transport Motor Insurers Bureau of Ireland: compensation of uninsured road accident victims, agreement dated 29th January 2009 between Minister for Transport and the Motor Insurers’ Bureau of Ireland (MIBI) Dublin: Stationery Office, 2009 M294.M6.C5

NEGLIGENCE Articles Kearns, Simon Applications to dismiss fraudulent claims in personal injury cases 13 (6) BR 130 Morris, Johanna An over view of the law of negligent misstatement or misrepresentation in Ireland 2009 16 (1) CLP 7

PLANNING AND ENVIRONMENTAL LAW Planning permission Appeal - Fair procedures - Substantial grounds – Objection to grant of planning permission - Respondent’s decision not to further consider appeal – Objection on basis of ownership of lands – Ownership subsequently established – Failure to communicate notice party’s submissions as to ownership to applicant - Condition of permission as to sightlines – Objection raised as to inability to comply with condition - Whether substantial grounds – Whether grounds of appeal clearly stated – Whether breach of fair procedures – Planning and Development Act 2000 (No 30), ss 38, 47,

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followed – Dublin Docklands Development Authority Act 1997 (No 7), s 14, 18, 24(5) and 25(1)(a) - Planning and Development Act 2000 (No 30) - Certiorari granted (2007/1527JR & 2007/188COM - Finlay Geoghegan J – 9/10/2008) [2008] IEHC 305 North Wall Property Co v Dublin Docklands Unauthorised development Permission – Increase in scale of business – Whether works carried out without permission – Whether material intensification of use without permission – Allegations of nuisance – Complaints – Retention application – Refusal of retention permission – Length of limitation period – Presumption against retrospectivity – Scale of operation prior to commencement of limitation period – Whether lands incorporated into site without permission – Whether intensification giving rise to material change of use – Assessment by reference to planning criteria – Effect in terms of traffic volumes, noise, dust or visual amenity - Whether production of ready-mix concrete unauthorised except as ancillary activity – Whether erection of unauthorised str uctures – Whether sufficient nexus between structures and existing permission - Effect of limitation period - Whether existing permission carries natural evolution of business – Construction of planning documents – Judicial discretion – Recognition of unlawfulness – Recklessness – Conduct of company – Delay in commencement of proceedings – Damages for nuisance – Kenny v An Bord Pleanála (No 1) [2001] 1 IR 565, Butler v Dublin Corporation [1999] 1 IR 565, Lanigan and Benghazi Ltd v Barry (Unrep, Charleton J, 15/2/2008), Molumby v Kearns (Unrep, O’Sullivan J, 19/1/1999), Trio Thames v Secretary of State for the Environment and Reading Borough Council [1984] JPL 183, Jillings v Secretary of State for the Environment [1984] JPL 32, Galway County Council v Lackagh Rock Limited [1985] IR 355, Waterford County Council v John A Wood [1999] 1 IR 556, Dublin County Council v Carty Builders & Co Ltd [1987] IR 355, XJS Investments Ltd v Dun Laoghaire Corporation [1987] ILRM 659, Dublin Corporation v Herbert Mulligan (Unrep, Finlay P, 6/5/1980), Morris v Garvey [1982] ILRM 177, Dublin Corporation v Maiden Poster Sites [1983] ILRM 48 and Dublin Corporation v O’Dwyer Bros (Unrep, Kelly J, 2/5/1997) considered - Planning and Development Act 2000 (No 3), s160 - Enforcement of all aspects of claim not statute barred ordered (2007/103MCA and 5661P – Clarke J – 19/9/2008) [2008] IEHC 291 Cork County Council v Slattery Pre-cast Concrete Ltd Articles Galligan, Eamon Can courts look behind the terms of a planning permission or enforcement notice?

2008 IP & ELJ 143

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Simons, Garrett Enforcement against unauthorised quarries: a new approach 2008 (4) IP & ELJ 148 Library Acquisition Dodd, Stephen Consolidated planning acts 2000-2007 Dublin: Thomson Round Hall, 2007 N96.C5 Statutory Instruments Waste management (batteries and accumulators) (amendment) regulations 2008 DIR/2008-103, DIR/2006-66 SI 556/2008 Waste management (certificate of historic unlicensed waste disposal and recovery activity) regulations 2008 DIR/2006-12, DIR/80-68 SI 524/2008

POSTAL & TELECOMMUNICATIONS Statutory Instrument Foreign post amendment (no. 43) scheme 2009 SI 14/2009

PRACTICE AND PROCEDURE Costs Appeal from taxing master – Costs of appeal of decision of Hepatitis C Compensation Tribunal - Amount of solicitors general instructions fee - Whether decision unjust – Whether failure to carry out objective assessment of work claimed – Whether failure to give reasons regarding appropriate amount of deduction – Whether inappropriate and incompatible comparators employed - Reduction to reflect residue of knowledge derived from hearing before tribunal – Power of court to review decision – Ormond (an infant) v Ireland (Unrep, Barron J, 29/5/1997), Best v Wellcome Foundation Ltd (No 3) [1996] 3 IR 378, Property and Reversionary Investment Corporation Limited v Secretary of State for the Environment [1975] 2 All ER 436, McGrory v Express Newspapers Plc (Unrep, Murphy J, 21/7/1995), Superquinn Limited v Bray Urban District Council [2001] 1 IR 459, Minister for Finance v Taxing Master Flynn (Unrep Herbert J, 31/7/2003), Bloomer v Incorporated Law Society of Ireland (No 2) [2000] 1 IR 383 and Quinn v South Eastern Health Board (Unrep, Peart J, 30/11/2005) considered - Courts and Courts Officers Act 1995 (No 31), s 27 - Rules of the Superior Courts 1986 (SI 15/1986), O 99 – Matter remitted to be reassessed by different taxing master (1999/122CT – Herbert J – 23/7/2008) [2008] IEHC 299

D v Minister for Health and Children Costs Immigration – Leave for judicial review – Humanitarian leave to remain granted – Offer to pay fixed sum in respect of costs – Unwillingness to submit to order for costs to be taxed in default of agreement - Costs hearing – Jurisdiction to order taxed costs to be paid up to specified date – Procedure for stopping clock in relation to costs - Costs up to and including costs hearing ordered to be taxed in default of agreement (2007/17JR – Finlay Geoghegan J – 30/7/2008) [2008] IEHC 280 Halowane v Minister for Justice, Equality and Law Reform Disclosure Criminal prosecution - Whether fair procedures require disclosure of documents in criminal proceedings – Privilege – Whether DPP should disclose documents – Public interest – Entitlement to disclosure of certain documents and reports – Whether DPP can claim public interest privilege over certain documents - DPP v Special Criminal Court [1999] 1 IR 60, People (DPP) v Kelly [2006] IESC 20, [2006] 3 IR 115, PG v DPP [2006] IESC 19, (Unrep, SC, 29/3/2006), BJ v DPP [2003] 4 IR 525, DPP v GK (Unrep, CCA, 6/6/2002), Murphy v Corporation of Dublin [1972] IR 215, Ambiorix Ltd v Minister for the Environment (No 1) [1992] 1 IR 277, Breathnach v Ireland (No 3) [1993] 2 IR 458, Fyffes plc v DCC plc [2005] IESC 3, [2005] 1 IR 59 and O’Callaghan v Mahon [2005] IESC 9, [2006] 2 IR 32 followed – Disclosure ordered (2006/375JR – McMahon J – 31/7/2008) [2008] IEHC 272 Traynor v Judge Delahunt Discovery Appeal from order of Master – Limited discovery ordered – Plaintiff on proof of all aspects of case - Whether limitation of discovery unduly restrictive of plaintiff ’s rights – Whether full order of discovery would give rise to perception of prejudgment of issues in case – Whether documentation likely to advance plaintiff ’s case or damage defendant’s case – Whether discovery disproportionate or unduly oppressive - Framus v CRH plc [2004] 2 IR 20 considered - Rules of the Superior Courts 1986 (SI 15/1986), O 31, rr 4 & 12 – Appeal allowed in part (2004/19669P – Herbert J – 31/10/2008) [2008] IEHC 340 Oppermann Associates Ltd v Casey Dismissal of proceedings Want of prosecution – Inordinate and inexcusable delay – Balance of justice – Libel action – Plea of justification – Unilateral decision not to progress proceedings pending outcome of tribunal of investigation – Whether delay was inordinate and inexcusable

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– Whether prejudice to defence – Whether balance of justice favoured continuance of claim – Whether court could interfere with discretionary order of High Court - Rainsford v Limerick Corporation [1995] 2 ILRM 561 and Primor plc v Stokes Kennedy Crowley [1996] 2 IR 459 applied; Gilroy v Flynn [2004] IESC 98, [2005] 1 ILRM 290 and Stephens v Paul Flynn Ltd [2005] IEHC 148, (Unrep, Clarke J, 28/4/2005) considered – Defendant’s appeal dismissed (317/2005 – SC – 15/10/2008) [2008] IESC 56 Desmond v MGN Ltd Dismissal of proceedings Want of prosecution – Procedural history – Dismissal of previous Circuit Court proceedings for want of prosecution – Extension of time for service of notice of appeal – Failure to file notice of appeal – Commencement of second set of proceedings with identical substantive issue – Whether purported consent to mortgage void – Judicial determination in first set of proceedings – Inordinate and inexcusable delay - Whether permissible to commence second set of proceedings – Heavy onus to progress second set of proceedings with high level of expedition – Further tilting of balance of justice – Rainsford v Limerick Corporation [1995] 2 ILRM 561, Gilroy v Flynn [2005] 1 ILRM 290, Stephens v Flynn (Unrep, Clarke J, 28/4/2005) and Birkett v James [1977] 2 All ER 801 considered – Family Home Protection Act 1976 (No 27) – Proceedings dismissed (2005/839P – Clarke J – 27/6/2007) [2007] IEHC 482 EBS Building Society v Healy Documents Inspection – Privilege – Legal professional privilege – Legal advice privilege – Legal advice or legal assistance – Dominant purpose - Making of will – Giving of instructions – Redaction – Affidavit of scripts – Whether communications between potential testator and solicitor for purpose of making will privileged - Ochre Ridge Ltd v Cork Bonded Warehouses Ltd [2004] IEHC 160 (Unrep, Lavan J, 13/7/2004), Three Rivers DC v Bank of England (No 5) [2003] EWCA Civ 474, [2003] QB 1556, R v Crown Court, ex parte Baines [1988] 1 QB 579 and Balabel v Air India [1988] Ch 317 followed; Moorview Development Ltd v First Active plc [2008] IEHC 274 (Unrep, Clarke J, 31/7/2008), Unilever plc v Procter & Gamble Co [2000] 1 WLR 2436 and Rush & Tompkins Ltd v Greater London Council [1989] 1 AC 1280 considered – Inspection granted (2006/3411P – Clarke J – 25/9/2008) [2008] IEHC 296 Re Dempsey: Prendergast v McLoughlin Personal injuries assessment board Authorisation – Medical or surgical procedure – Factual circumstances – Personal Injuries Assessment Board Act 2003 (No 46), s 3(d)

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– Defendant’s motion to strike out refused (2007/7423P – O’Neill J 11/11/2008) [2008] IEHC 352 Gunning v National Maternity Hospital Personal Injuries Assessment Board Road traffic accident – Accident caused by uninsured driver – Whether proceedings could be issued against Motor Insurers’ Bureau of Ireland without authorisation from Injuries Board – Whether action against Motor Insurers’ Bureau of Ireland constitutes “civil action” to which Act of 2003 applies – Paterson v Chadwick [1974] 1 WLR 890 and Trustees, Executors & Agency Company Limited v Reilly [1941] VLR 110 considered - Personal Injuries Assessment Board Act 2003 (No 46), ss 3 and 4 – Plaintiff ’s appeal dismissed (335/2005 - SC – 7/5/2008) [2008] IESC 32 Campbell v O’Donnell Settlement Application for declaration that agreement expired - Agreement in writing executed by way of settlement of proceedings – Agreement purported to settle all prior outstanding issues Agreement gave option to purchase for agreed sum – Option granted subject to compliance with conditions of agreement and deadline Mechanism for extending option period – No provision for further extension of option period – Whether agreement varied – No evidence offered - Legal representation - Behaviour of counsel - Unorthodox relationship - Counsel’s conduct of trial – Non attendance by council at hearing - Adjournment – Medical evidence – Whether attempt to adjourn trial stalling tactic - Declarations granted (2007/7886P Kelly J- 13/6/2008) [2008] IEHC 179 O’Connor v Power (in trust) Stay Adjournment – Reference to European Court of Justice – Conflict of decisions – Material or substantial risk – Whether proceedings in Ireland should be stayed pending decision of European Court of Justice in proposed proceedings on issue to be decided – Applicant’s appeal dismissed (103 & 106/2008 – SC – 31/7/2008) [2008] IESC 55 O’Leary v An Bórd Pleanála Statutory Instruments Rules of the Superior Courts (amendment to order 118) 2008 SI 562/2008 Rules of the Superior Courts (criminal justice acts 2006 and 2007) 2009 SI 10/2009 Rules of the Superior Courts (European orders for payment) 2008 SI 551/2008

Rules of the superior courts (residential institutions redress act 2002) 2008 SI 529/2008

PRISONS Assault Duty of care - Allegation that prison authorities knew plaintiff about to be assaulted - Conflict and contradiction in plaintiff ’s evidence Whether prison authorities negligent and in breach of duty in failing to prevent attack on plaintiff - Whether adequate steps taken to prevent assault – Whether court satisfied on balance of probabilities that events described by plaintiff correct - Muldoon v Ireland [1988] ILRM 367 considered - Claim dismissed (2001/17694P – Gilligan J - 11/4/2008) [2008] IEHC 123 Breen v Governor of Wheatfield Prison Articles Human rights in Irish prisons Hamilton, Claire (2008) 2 JSIJ 58 Prison psychiatric inreach and court liaison services in Ireland O’Neill, Conor (2008) 2 JSIJ 147

PROPERTY Article Herron, Niamh Performance anxiety 2009 (January/February) GLSI 24 Library Acquisitions Hanbury, William Defective premises: law and practice London: Thomson Sweet & Maxwell, 2009 N93.4 Power, Albert Intangible property rights in Ireland 2nd ed Haywards Heath: Tottel Publishing, 2009 N50.C5

RATING Valuation Tribunal Point of law – Rateable property – Exempt property - Relevant property – Whether property of Health Service Executive exempt property - Legal status of Health Service Executive -– Whether Health Service Executive “office of State” “semi-State body” or “the State” - Whether tribunal correct in finding that Health Service Executive “office of State” - Concept of “the State” – Definitions construction and general scheme of Act -

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– Rules of statutory interpretation - Objective intention of Oireachtas - Noscitur a sociis – Applicable test - Nature and function of Health Service Executive - Revenue Commissioners v Doorley [1933] IR 750, Keogh v Criminal Assets Bureau [2004] IESC 32, [2004] 2 IR 159, Comyn v Attorney General [1950] IR 142, Webb v Ireland [1988] IR 353, Commissioners of Public Works v Kavanagh [1962] IR 216, Cork County Council v Commissioners of Public Works [1945] IR 561, Inspector of Taxes v Kiernan [1981] IR 117, Slattery v Flynn [2003] ILRM 450 considered - Valuation Act 2001 (No 13), ss 3, 10, 15, 16, 39(5) and 69, sch 3(1)(o) and 14(4) - Health Act 2004 (No 42), ss 2, 3, 6, 7, 11, 13, 14, 17, 18, 21, 22, 23, 29, 30, 31, 34 and 36 – Constitution of Ireland 1937, arts 10 and 28.4 - Health Service Executive deemed to be the State and therefore not rateable (2008/11SS - MacMenamin J - 13/6/2008) [2008] IEHC 178 Health Service Executive v Commissioners for Valuation

Road traffic (national car test) (amendment) regulations 2008 SI 588/2008

SOLICITOR

Road traffic (ordinary speed limits - buses, heavy goods vehicles, etc) regulations 2008 SI 546/2008

RELIGION

Library Acquisition

Application for client file to be delivered to new solicitors – Application for deferral of payment of costs to former solicitors – Undertaking from solicitors on record to pay agreed costs – Whether client discharged retainer – Entitlement to recover costs – Contract – Jurisdiction of court – Solicitors’ lien - Ability of client to prosecute claim - Mulheir v Gannon [2006] IEHC 274 (Unrep, Laffoy J, 17/7/2006), In re Galdan Properties Ltd [1988] 1 IR 213, Hughes v Hughes [1958] P 224, Gamlen Chemical Company v Rochem Ltd [1980] 1 All ER 1041, Heslop v Metcalf (1837) 3 My & G 183 and Duff v Minister for Agriculture and Food (No 2) [1997] 2 IR 22 considered - Rules of the Superior Courts 1986 (SI 15/1986), O 7 – Delivery of file ordered with undertaking by solicitors on record to hold files subject to former solicitor’s lien (1990/4509P – Laffoy J – 11/7/2008) [2008] IEHC 286 Ahern v Minister for Agriculture and Food

Article Daly, Eoin Re-evaluating the purpose of church-state separation in the Irish constitution: the endowment clause as a protection of religious freedom and equality (2008) 2 JSIJ 86

RESTITUTION Article Farrell, Laura The future of the law of restitution in Ireland: the unjust question 13 (6) BR 135

ROAD TRAFFIC Library Acquisition Department of Transport Motor Insurers Bureau of Ireland: compensation of uninsured road accident victims, agreement dated 29th January 2009 between Minister for Transport and the Motor Insurers’ Bureau of Ireland (MIBI) Dublin: Stationery Office, 2009 M294.M6.C5 Statutory Instruments Road traffic (licensing of drivers) (amendment) regulations 2008 DIR/91-439, DIR/2000-56, DIR/2008-65 SI 471/2008 Road traffic (national car test) (amendment) (no 2) regulations 2008 SI 590/2008

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Road traffic (weight laden of 5 axle articulated vehicles) regulations 2008 DIR 96-53 SI 589/2008

SECURITY Statutory Instrument Private security ser vices act 2004 (commencement) order 2008 SI 497/2008

SHIPPING Tetley, William Marine cargo claims 4th ed Toronto: Thomson Carswell, 2008 N330 Statutory Instrument

Costs

Article Lysaght, Charles Competition authority report on solicitors and barristers (2008) 2 JSIJ 159

Merchant shipping (safety convention) (countries of acceptance) order 2008 SI 553/2008

Statutory Instruments

SOCIAL WELFARE

The Solicitors acts 1954 to 2008 solicitors (practicing certificate 2009) regulations 2008 SI 540/2008

Statutory Instruments Social welfare (agreement with the Republic of Korea on social security) order 2008 SI 552/2008 Social welfare (consolidated claims, payments and control) (amendment) (no.4) (increase in rates) regulations 2008 SI 601/2008 Social welfare (consolidated supplementary welfare allowance) (amendment) (no.2) regulations 2008 SI 603/2008 Social welfare (consolidated claims, payments and control) (amendment) (no. 5) (graduated rates) regulations 2008 SI 604/2008 Social welfare (occupational injuries) (amendment) regulations 2008 SI 602/2008 Social welfare (rent allowance) (amendment) regulations 2008 SI 600/2008 Social welfare (temporar y provisions) regulations 2008 SI 500/2008

The solicitors acts 1954 to 2008 (apprentices’ fees) regulations 2008 SI 577/2008

SPECIFIC PERFORMANCE Article Herron, Niamh Performance anxiety 2009 (January/February) GLSI 24

STATUTORY INTERPRETATION Literal interpretation Purposive interpretation – Whether language plain and unambiguous – Whether purposive approach to interpretation appropriate – Intention of legislature from Act as whole – Limited nature of powers – Detailed regulations – Long title – Persons of insufficient means – Bakht v Medical Council [1990] 1 IR 515 considered - Civil Legal Aid Act 1995 (No 32), s 29(2) – Interpretation Act 2005 (No 23), s 5 - Claim dismissed (2007/1542JR – Edwards J – 6/10/2008) [2008] IEHC 300 Monahan v Legal Aid Board

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TAXATION Value added tax Lease - Attempts to reduce VAT liability by artificial lease and leaseback arrangements – Whether scheme of lease and leaseback exempted liability for VAT - Validity of lease in contravention of mortgage deed - Whether lease ineffective due to absence of prior written consent of the mortgagee - Whether lease and leaseback void - Abusive process - Whether lease and leaseback had no commercial reality – Whether abusive practice within doctrines identified of European Court of Justice Jurisprudence of European Court of Justice - Powers of review of court - Applicability of doctrine of abusive practice in European law to scheme - True reality of situation – Principles of general application - Whether interest due - Muir v Inland Revenue Commissioners [1966] 1 All ER 295, Ó Culachain v McMullan Brothers Ltd [1995] 2 IR 217, Irontrades Employers Insurance Association v Union Land and House Investors [1937] 1 Ch 313, ICC Bank plc v Verling & Ors [1995] 1 ILRM 123, Wise Finance Co Ltd v O’Regan (Unrep, Laffoy J, 26/6/1998), Van Binsbergen v Bestuur [1974] ECR 1229, Kofoed v Skatteministeriet [2007] ECR 5795, Albatros Feeds Ltd v Minister for Agriculture [2006] IESC 52 [2007] 1 IR 221, Criminal proceedings against Pupino [2005] ECR 5285, Adeneler v Ellinkos Organismos Galaktos [2006] IRLR 716, Furniss v Dawson [1984] AC 474, McGrath v McDermott (Inspector of Taxes) [1988] IR 258, McCabe v South City & Country Investment Co Ltd [1997] ITR 107, Commission v Belgium [1992] ECR 6757, Vereniging Veronica Omroep Organisatie v Commissariaat voor de Media [1993] ECR 487, The Queen HM Treasury [1998] ECR 5483, Deutsche Milchkontor v Germany [1983] ECR 2633, Johnston v Chief Constable of the Royal Ulster Constabulary [1986] ECR 1651, FMC v Intervention Board for Agricultural Produce [1996] ECR 389, Chemie Nederland v Minister van Volkshuisvesting [2000] ECR 4475, Halifax plc v Commissioners of Customs and Excise [2006] ECR 1609, Ministero dell’Economia v Part (Unrep, ECJ 21/2/2008), Hans Markus Kofoed v Skatteministeriet [2007] ECR 5795, Transport Service [2004] ECR 1991, Schmeink, Cofreth and Strobel [2000] ECR 6973, Sinclair Collis Limited v Commissioners of Customs and Excise [2003] ECR 5965 and Belgium State v Temco Europe SA [2004] ECR 11237 considered - Taxes Consolidation Act 1997 (No. 39), ss 941 and 943 - Value Added Tax Act 1972 (No 22), s 25(2) - Council Directive 77/388/EEC - Appeal dismissed (2007/659R – Charleton J - 11/6/2008) [2008] IEHC 169 Cussens v Brosnan Library Acquisition Cordara, Roderick Tolley’s orange tax handbook 2008-09 2008-09 ed London: LexisNexis: 2008 M335

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Tiley, John Tiley and Collison’s UK tax guide 2008-09 26th ed London: LexisNexis Butterworths, 2008 M335 Statutory Instruments Double taxation relief (taxes on income and capital gains) (Republic of Turkey) order 2008 SI 501/2008 Double taxation relief (taxes on income) (Malta) order 2008 SI 502/2008 Finance act 2007 (commencement of section 24 (1)) order 2008 SI 472/2008 Finance act 2008 (section 32) (commencement of certain provisions) order 2008 SI 560/2008 Income tax (employments) regulations 2008 SI 592/2008

TORT Negligence Personal injuries – Damages - Soldier – Post traumatic stress disorder – Noise induced deafness - Vulnerable personality – Immaturity - Stress following deaths of colleagues - Incapacitating states of anxiety – Heavy drinking – Insomnia – Nightmares - Alleged failure to diagnose and treat PTSD – Alleged failure to provide remedial treatment – Duty to take reasonable care for health and safety – Duty to keep abreast with contemporary knowledge - Continuing duties while in service – Correctness of diagnosis of PTSD – Failure to recognise symptoms – Knowledge of PTSD at time of tour – Accuracy of recall for traumatic events – Whether retrospective application of new diagnostic techniques – Repeated sick leave – Previous good work record – Knowledge of plaintiff ’s condition in the Lebanon – Misdiagnosis by army medical officers – Failure to observe or inquire into symptoms – Failure to follow up and monitor notwithstanding advice – Failure to inform or assist civilian doctors – Delay in acting when issue of PTSD first raised – Failure to acknowledge diagnosis of PTSD – Liability for psychiatric injuries – Nervous shock – Claim of statute bar – Delay – Whether statute bar live issue – Date of knowledge – Constructive knowledge – Knowledge of acts or omissions causing the injury – Failure of plaintiff to give information of problems to army and treating doctors – Reticence and avoidance – Alleged alcoholism – Failure to plead alcoholism – Quantum - Knowles v Minister for Defence (Unrep, O’Donovan J, 22/2/2002), Dalton v Frendo (Unrep, SC, 15/12/1977), McHugh v Minister

for Defence [2001] IR 424, Byrne v Great Southern and Western Railway (Unrep, Court of Appeal, February 1884), Bell v Great Northern Railway Company of Ireland (1890) 26 LR Ir 428, Dulieu v White & Sons [1901] 2 KB 669, McLoughlin v O’Brian [1983] 1 AC 410, Jaensch v Coffey [1984] 155 CLR 549, Mullally v Bus Eireann [1982] ILRM 722, Kelly v Hennessy [1995] 3 IR 253, Curran v Cadbury (Ireland) Ltd [2000] 2 ILRM 343, White v Chief Constable of South Yorkshire [1998] 3 WLR 1509, Alcock v Chief Constable of South Yorkshire [1992] 1 AC 310, Maher v Jabil Global Services Ltd [2005] 16 ELR 233, Quigley v Complex Tooling and Moulding (Unrep, Lavan J, 9/3/2005), Pickering v Microsoft Ireland Operations Ltd [2006] 17 ELR 65, Bradley v An Post [1998] 2 ILRM 1, Gough v Neary [2003] 3 IR 92 and Spargo v North Essex Health Authority [1997] 8 Med LR 125 considered - Statute of Limitations Act 1957 (No 6), s 11 - Statute of Limitations (Amendment) Act 1991 (No 18), ss 2 and 3 - Damages awarded (2008/3563P – Budd J – 22/7/2008) [2008] IEHC 292 Murtagh v Minister for Defence Personal injuries Liability - Negligence – Surgery on finger – Avulsion of fingernail – Surgery performed by trainee – Trainee not directly supervised – Plaintiff manual labourer – Expert evidence - Limitation – Date of knowledge – Delay in providing medical records - Whether defendant negligent – Whether reasonable to attempt to minimise loss of functional length of finger – Whether lack of direct supervision negligent – Whether claim statute barred - Statute of Limitations 1957 (No 6), s 2 – Plaintiff ’s claim dismissed (2002/11853P – Peart J – 17/10/2008) [2008] IEHC 315 Dunne v Eastern Regional Health Authority Articles Kearns, Simon Applications to dismiss fraudulent claims in personal injury cases 13 (6) BR 130 Nolan, David Mediation and the 2004 civil liability and courts act 13 (6) BR 132 Ryan, Ray Employers’ liability in negligence: recent approaches in the Irish courts Ryan, Des 2008 3 (2) QRTL 1 Schuster, Alex Impact on tort litigation of the consumer protection act 2007 2008 3 (2) QRTL 7

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TRANSPORT

AT A GLANCE

Statutory Instrument

European Directives implemented into Irish Law up to 18/03/2009

Railway safety act 2005 (section 26) levy order SI 568/2008

TRAVEL LAW Library Acquisitions Saggerson, Alan Package holiday law; cases and materials 2nd edition St. Albans: XPL Publishing, 2008 N286.T6 Saggerson, Alan Travel: law and litigation 4th edition St. Albans: XPL Publishing, 2008 N320

WARDS OF COURT Jurisdiction Objection to wardship jurisdiction – Whether High Court had inherent jurisdiction to establish alternative arrangement for protection of award of damages in advance of determination of unsound mind – R v R [1984] IR 296 and In re D [1987] IR 449 considered; G McG v D W ( No 2) [2000] 4 IR 1 applied - Lunacy Regulation (Ireland) Act 1871 (33 & 35 Vic, c 22), s 12 – Court Supplemental Provisions Act 1961 (No 39), s 9 – Held no jurisdiction (2008/118MCA – Sheehan J – 29/7/2008) [2008] IEHC 264 Re D (F)

WATER LAW Article Blennerhassett, Joanne Water water everywhere - regulation now nicely bottled 2008 (4) IP & ELJ 155 Statutory Instruments National rural water services committee (establishment day) order 2008 SI 522/2008 Water conservation regulations 2008 SI 527/2008 Water services act 2007 (commencement) order 2008 SI 528/2008

European communities (bovine breeding) regulations 2009 Please see S.I as it implements a number of Directives SI 19/2009 European communities (Burma/Myanmar) (financial sanctions) regulations 2009 REG/194-2008 SI 35/2009 European communities (cat and dog fur) (restriction on trade) regulations 2008 Reg 1523-2007 SI 513/2008 European communities (clinical trials on medicinal products for human use) (amendment) regulations 2009 REG/1394-2007, DIR/2001-20 SI 1/2009 European communities (common rules for the operation of air services REG/1008-2008 SI 426/2008 European communities (control of organisms har mful to plants and plant products) (amendment) regulations 2009 DIR/2008-109 SI 8/2009 European communities (electro-medical equipment used in human or veterinary medicine) (revocation) regulations 2008 DIR/2008-13 SI 578/2008 European communities (electronic communication networks and ser vices) (data protection and privacy) (amendment) regulations 2008 DIR/2002-58 SI 526/2008 European communities (energy performance of buildings)(amendment)(no.2) regulations 2008 DIR/2002-91 SI 591/2008 European communities (environmental liability) regulations 2008 DIR/2004-35 SI 547/2008 European communities (European small claims procedure) regulations 2008 REG/861-2007 SI 533/2008 European communities (European order for payment) regulations 2008 REG/1896-2006 SI 525/2008

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European communities (foodstuffs) (accession of Bulgaria and Romania) (amendment) (no 2) regulations 2008 DIR/2006-107 SI 517/2008 European communities (marketing of vegetable propagating and planting material, other than seed) (amendment) regulations 2008 DIR/2008-72 SI 564/2008 European communities (mergers and divisions of companies) (amendment) regulations 2008 DIR/2007-63 SI 572/2008 European communities (prepacked products) regulations 2008 DIR/2007-45 SI 566/2008 Financial transfers (Bur ma/Myanmar) (prohibition) order 2009 REG/194-2008 SI 34/2009 Financial transfers (Iraq) (prohibition) order 2008 REG/1210-2003 SI 6/2009 Medicinal products (control of manufacture) regulations 2007(amendment) regulations 2009 DIR 2001-83 SI 4/2009 Medicinal products (control of placing on the market) regulations 2007 (amendment) regulations 2009 DIR 2001-83 SI 3/2009 Medicinal products (control of wholesale distribution) regulations 2007 (amendment) regulations 2009 DIR/2001-83, REG/1394-2007 SI 2/2009 Pensions act 1990 (disclosure of information) (amendment) regulations 2008 REG/2056-2002, DIR/2003-41 SI 531/2008 Road traffic (licensing of drivers) (amendment) regulations 2008 DIR/91-439, DIR/2000-56, DIR/2008-65 SI 471/2008 Road traffic (weight laden of 5 axle articulated vehicles) regulations 2008 DIR 96-53 SI 589/2008 Waste management (batteries and accumulators) (amendment) regulations 2008 DIR/2008-103, DIR/2006-66 SI 556/2008

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Waste management (certificate of historic unlicensed waste disposal and recovery activity) regulations 2008 DIR/2006-12, DIR/80-68 SI 524/2008

Bills of the Oireachtas as at 18th March 2009 (30th Dáil & 23rd Seanad)

Rules of Court

Information compiled by Clare O’Dwyer, Law Library, Four Courts.

Circuit Court rules (consumer protection act 2007) 2008 SI 585/2008 District court (European small claims) rules 2008 SI 583/2008 Rules of the Superior Courts (amendment to order 118) 2008 SI 562/2008 Rules of the Superior Courts (criminal justice acts 2006 and 2007) 2009 SI 10/2009 Rules of the Superior Courts (European orders for payment) 2008 SI 551/2008 Rules of the superior courts (residential institutions redress act 2002) 2008 SI 529/2008

Acts of the Oireachtas as at 18th March 2009 (30th Dáil & 23rd Seanad) Information compiled by Clare O’Dwyer, Law Library, Four Courts.

1/2009

Anglo Irish Bank Corporation Act 2009 Signed 21/01/2009

2/2009

Re s i d e n t i a l Te n a n c i e s (Amendment) Act 2009 Signed 28/01/2009

3/2009

Gas (Amendment) Act 2009 Signed 17/02/2009

5/2009

Financial Emergency Measures in the Public Interest Act 2009 Signed 27/02/2009

6/2009

Charities Act 2009 Signed 28/02/2009

[pmb]: Description: Private Members’ Bills are proposals for legislation in Ireland initiated by members of the Dáil or Seanad. Other Bills are initiated by the Government.

Adoption Bill 2009 Bill 2/2009 Committee Stage – Seanad (Initiated in Seanad) Air Navigation and Transport (Prevention of Extraordinary Rendition) Bill 2008 Bill 59/2008 2nd Stage – Dáil [pmb] Deputy Michael D. Higgins Anglo Irish Bank Corporation (No. 2) Bill 2009 Bill 6/2009 Committee Stage – Dáil Arbitration Bill 2008 Bill 33/2008 Committee Stage - Dáil Broadband Infrastructure Bill 2008 Bill 8/2008 2nd Stage – Seanad [pmb] Senators Shane Ross, Feargal Quinn, David Norris, Joe O’Toole, Rónán Mullen and Ivana Bacik

Credit Union Savings Protection Bill 2008 Bill 12/2008 2nd Stage – Seanad [pmb] Senators Joe O’Toole, David Norris, Feargal Quinn, Shane Ross and Ivana Bacik Criminal Justice (Violent Crime Prevention) Bill 2008 Bill 58/2008 2 nd Stage – Dáil [pmb] Deputy Charles Flanagan Criminal Law (Admissibility of Evidence) Bill 2008 Bill 39/2008 Order for 2nd Stage – Seanad [pmb] Senators Eugene Regan, Frances Fitzgerald and Maurice Cummins Data Protection (Disclosure) (Amendment) Bill 2008 Bill 47/2008 2nd Stage - Dáil [pmb] Deputy Simon Coveney Defamation Bill 2006 Bill 43/2006 2nd Stage – Dáil (Initiated in Seanad) Defence of Life and Property Bill 2006 Bill 30/2006 2nd Stage – Seanad [pmb] Senators Tom Morrissey, Michael Brennan and John Minihan

Civil Liability (Amendment) Bill 2008 Bill 46/2008 2 nd Stage – Dáil [pmb] Deputy Charles Flanagan

Electoral (Amendment) Bill 2009 Bill 9/2009 Order for 2nd Stage - Dáil

Civil Liability (Amendment) (No. 2) Bill 2008 Bill 50/2008 2nd Stage – Seanad [pmb] Senators Eugene Regan, Frances Fitzgerald and Maurice Cummins Civil Partnership Bill 2004 Bill 54/2004 2 nd Stage – Seanad [pmb] Senator David Norris Civil Unions Bill 2006 Bill 68/2006 Committee Stage – Dáil [pmb] Deputy Brendan Howlin

Climate Protection Bill 2007 Bill 42/2007 2nd Stage – Seanad [pmb] Senators Ivana Bacik, Joe O’Toole, Shane Ross, David Norris and Feargal Quinn

BR 2-2009.indd 42

Coroners Bill 2007 Bill 33/2007 Committee Stage – Seanad (Initiated in Seanad)

Broadcasting Bill 2008 Bill 29/2008 Committee Stage – Dáil (Initiated in Seanad)

Climate Change Bill 2009 Bill 4/2009 2nd Stage – Dáil [pmb] Deputy Eamon Gilmore

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Consumer Protection (Amendment) Bill 2008 Bill 22/2008 2nd Stage – Seanad [pmb] Senators Dominic Hannigan, Alan Kelly, Phil Prendergast, Brendan Ryan and Alex White

Electoral (Amendment) Bill 2008 Bill 38/2008 Committee Stage – Seanad (Initiated in Dáil) Electoral Commission Bill 2008 Bill 26/2008 2nd Stage – Dáil [pmb] Deputy Ciarán Lynch Electoral (Gender Parity) Bill 2009 Bill 10/2009 2nd Stage - Dáil Employment Law Compliance Bill 2008 Bill 18/2008 2nd Stage – Dáil Ethics in Public Office Bill 2008 Bill 10/2008 2nd Stage – Dáil [pmb] Deputy Joan Burton Ethics in Public Office (Amendment) Bill 2007 Bill 27/2007 2nd Stage – Dáil (Initiated in Seanad)

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Fines Bill 2007 Bill 4/2007 Order for 2nd Stage – Dáil

Industrial Development Bill 2008 Bill 65/2008 Committee Stage – Seanad (Initiated in Seanad)

Freedom of Information (Amendment) Bill 2008 Bill 24/2008 2nd Stage – Seanad [pmb] Senators Alex White, Dominic Hannigan, Brendan Ryan, Alan Kelly, Michael McCarthy and Phil Prendergast

I n d u s t r i a l Re l a t i o n s ( P r o t e c t i o n o f Employment) (Amendment) Bill 2009 Report and Final Stages – Dáil (Initiated in Dáil)

Freedom of Information (Amendment) (No.2) Bill 2008 Bill 27/2008 2nd Stage – Dáil [pmb] Deputy Joan Burton Freedom of Information (Amendment) (No. 2) Bill 2003 Bill 12/2003 2nd Stage – Seanad [pmb] Senator Brendan Ryan Fuel Poverty and Energy Conservation Bill 2008 Bill 30/2008 2nd Stage – Dáil [pmb] Deputy Liz McManus Garda Síochána (Powers of Surveillance) Bill 2007 Bill 53/2007 2nd Stage – Dáil [pmb] Deputy Pat Rabbitte Genealogy and Heraldry Bill 2006 Bill 23/2006 1 st Stage – Seanad [pmb] Senator Brendan Ryan Harbours (Amendment) Bill 2008 Bill 42/2008 Report Stage – Seanad (Initiated in Seanad) Health Insurance (Miscellaneous Provisions) Bill 2008 Bill 67/2008 Order for 2nd Stage - Dáil Housing (Miscellaneous Provisions) Bill 2008 Bill 41/2008 2nd Stage – Dáil (Initiated in Seanad) Housing (Stage Payments) Bill 2006 Bill 16/2006 2 nd Stage – Seanad [pmb] Senator Paul Coughlan Human Body Organs and Human Tissue Bill 2008 Bill 43/2008 2 nd Stage – Seanad [pmb] Senator Feargal Quinn Human Rights Commission (Amendment) Bill 2008 Bill 61/2008 2 nd Stage – Dáil [pmb] Deputy Aengus O’Snodaigh Immigration, Residence and Protection Bill 2008 Bill 2/2008 Committee Stage – Dáil

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Investment of the National Pensions Reserve Fund and Miscellaneous Provisions Bill 2009 Bill 8/2009 2nd Stage - Dáil Irish Nationality and Citizenship (Amendment) (An Garda Síochána) Bill 2006 Bill 42/2006 1st Stage – Seanad [pmb] Senators Brian Hayes, Maurice Cummins and Ulick Burke Land and Conveyancing Law Reform Bill 2006 Bill 31/2006 Committee Stage – Dáil (Initiated in Seanad) Legal Practitioners (Qualification) (Amendment) Bill 2007 Bill 46/2007 2nd Stage – Dáil [pmb] Deputy Brian O’Shea Legal Services Ombudsman Bill 2008 Bill 20/2008 Report and Final Stages – Dáil Local Elections Bill 2008 Bill 11/2008 2nd Stage – Dáil [pmb] Deputy Ciarán Lynch Mental Capacity and Guardianship Bill 2008 Bill 13/2008 2nd Stage – Seanad [pmb] Senators Joe O’Toole, Shane Ross, Feargal Quinn and Ivana Bacik Mental Health (Involuntary Procedures) (Amendment) Bill 2008 Bill 36/2008 2nd Stage – Seanad [pmb] Senators Déirdre de Búrca, David Norris and Dan Boyle National Cultural Institutions (Amendment) Bill 2008 Bill 66/2008 Order for 2nd Stage – Seanad [pmb] Senator Alex White National Pensions Reserve Fund (Ethical Investment) (Amendment) Bill 2006 Bill 34/2006 1st Stage – Dáil [pmb] Deputy Dan Boyle Nursing Homes Support Scheme Bill 2008 Bill 48/2008 2nd Stage – Dáil Offences Against the State Acts Repeal Bill 2008 Bill 37/2008 2 nd Stage – Dáil [pmb] Deputy Aengus Ó Snodaigh, Martin Ferris, Caomhghin Ó Caoláin and Arthur Morgan Offences Against the State (Amendment) Bill 2006 Bill 10/2006

1st Stage – Seanad [pmb] Senators Joe O’Toole, David Norris, Mary Henry and Feargal Quinn Official Languages (Amendment) Bill 2005 Bill 24/2005 2nd Stage – Seanad [pmb] Senators Joe O’Toole, Paul Coghlan and David Norris Ombudsman (Amendment) Bill 2008 Bill 40/2008 Order for 2nd Stage – Dáil Planning and Development (Amendment) Bill 2008 Bill 49/2008 2nd Stage – Dáil [pmb] Deputy Joe Costello Planning and Development (Enforcement Proceedings) Bill 2008 Bill 63/2008 2nd Stage – Dáil [pmb] Deputy Mary Upton Prevention of Corruption (Amendment) Bill 2008 Bill 34/2008 Committee Stage – Dáil Privacy Bill 2006 Bill 44/2006 Order for Second Stage – Seanad (Initiated in Seanad) Protection of Employees (Agency Workers) Bill 2008 Bill 15/2008 2nd Stage – Dáil [pmb] Deputy Willie Penrose Public Appointments Transparency Bill 2008 Bill 44/2008 2nd Stage – Dáil [pmb] Deputy Leo Varadkar Registration of Lobbyists Bill 2008 Bill 28/2008 2nd Stage – Dáil [pmb] Deputy Brendan Howlin S e a n a d E l e c t o r a l ( Pa n e l M e m b e r s ) (Amendment) Bill 2008 Bill 7/2008 Order for 2nd Stage – Seanad [pmb] Senator Maurice Cummins Spent Convictions Bill 2007 Bill 48/2007 2nd Stage – Dáil [pmb] Deputy Barry Andrews Stem-Cell Research (Protection of Human Embyros) Bill 2008 Bill 60/2008 2nd Stage – Seanad [pmb] Senators Rónán Mullen, Jim Walsh and John Hanafin Student Support Bill 2008 Bill 6/2008 2nd Stage – Dáil Tribunals of Inquiry Bill 2005 Bill 33/2005 2nd Stage – Dáil Twenty-ninth Amendment of the Constitution Bill 2008 Bill 31/2008 2nd Stage – Dáil [pmb] Deputy Arthur Morgan

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Twenty-eighth Amendment of the Constitution Bill 2008 Bill 14/2008 Report and Final Stages – Dáil Twenty-eighth Amendment of the Constitution Bill 2007 (Rights of Child) Bill 14/2007 Order for 2nd Stage - Dáil Victims’ Rights Bill 2008 Bill 1/2008 2nd Stage – Dáil [pmb] Deputies Alan Shatter and Charles Flanagan Vocational Education (Primary Education) Bill 2008 Bill 51/2008 2nd Stage – Dáil [pmb] Deputy Ruairi Quinn Witness Protection Programme (No. 2) Bill 2007 Bill 52/2007 2nd Stage – Dáil [pmb] Deputy Pat Rabitte

Abbreviations BR = Bar Review CIILP = Contemporary Issues in Irish Politics CLP = Commercial Law Practitioner DULJ = Dublin University Law Journal GLSI = Gazette Law Society of Ireland IBLQ = Irish Business Law Quarterly ICLJ = Irish Criminal Law Journal ICPLJ = Irish Conveyancing & Property Law Journal IELJ = Irish Employment Law Journal IJEL = Irish Journal of European Law IJFL = Irish Journal of Family Law ILR = Independent Law Review ILTR = Irish Law Times Reports IPELJ = Irish Planning & Environmental Law Journal ISLR = Irish Student Law Review ITR = Irish Tax Review JCP & P = Journal of Civil Practice and Procedure JSIJ = Judicial Studies Institute Journal MLJI = Medico Legal Journal of Ireland QRTL = Quarterly Review of Tort Law The references at the foot of entries for Library acquisitions are to the shelf mark for the book.

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Mediation in Commercial Disputes

By Conor Feeney BL Introduction Rule 6(1)(xiii) of Order 63A of the Rules of the Superior Courts 1986 provides that the Commercial Judge may, on the application of any of the parties or of his own motion, direct that proceedings be adjourned to allow the parties to consider mediation. The Commercial Court regularly makes these adjournment orders and, as a result, practitioners are now more likely to seriously consider whether they should attempt mediation. But how far can the court go in pushing parties into attempting mediation and can it penalise parties for refusing to give mediation a go?

court is another factor which can be added to the list above.

Indeed, Dyson L.J. stated: “The stronger the encouragement, the easier it will be for the unsuccessful party to discharge the burden of showing that the successful party’s refusal was unreasonable.”

On the facts of Halsey, the court had not itself suggested ADR, and for this reason the refusal of the successful party to enter mediation was not unreasonable. This suggests that the issue of whether or not ADR has been suggested by the

Factor (b) above was at issue in the case of Hickman v. Blake Lapthorn and Fisher . In that case, a claimant successfully sued his solicitor and barrister for negligence. The solicitor had been willing to mediate and urged the barrister to do so, but the barrister had refused. The claimant had made an offer of settlement but the barrister refused to negotiate or enter into mediation as he valued the claim at a significantly lower figure that the offer. The claimant recovered less than his offer of settlement. The solicitor submitted that the barrister should pay the whole of the claimant’s costs after the date when the solicitor urged the barrister to mediate. The issue was whether the solicitor could demonstrate that the barrister’s view of his prospects had been an unreasonable one. The court found that this had not been demonstrated.

An example of factor (c) above coming into play was Valentine v. Allen . In that case the court was satisfied that the respondents had not acted unreasonably in refusing mediation and thus granted them their full costs at the conclusion of the appellant’s failed appeal. The respondents had put before the court an extensive bundle of correspondence showing that they had made real efforts to settle the dispute, by making generous offers and had sought a round-the-table meeting, all of which were refused by the appellant.

Factor (f) was at issue in Hurst v. Leeming . In that case a barrister was found to have acted reasonably in refusing to proceed to mediation in a professional negligence action where the attitude and character of the claimant made it unlikely that the mediation would succeed. The exceptional nature of this case is demonstrated in the judgment of Lightman J., who found that the claimant was “so seriously disturbed” by the course of events, and so “obsessed with the injustice” which he considered he had suffered, that he was “incapable of a balanced evaluation of the facts”. In such exceptional circumstances, it was reasonable for the barrister to take the view that the mediation had no real prospect of success.

It should be pointed out that it has been confirmed in the case of Reed Executive plv v. Reed Business Information Ltd. that the question of whether or not a party unreasonably refused to mediate does not fall into any of the exceptions

Inserted by the Rule of the Superior Courts (Commercial Proceedings) 2004 (S.I. No. 2 of 2004).

[2002] 2 All E.R. 850 [2004] 4 All E.R. 920.

Costs sanctions Possibly the single biggest factor in pushing the ADR agenda in commercial disputes in England and Ireland has been the lingering threat that a party that does not at least attempt to mediate the dispute is liable to be penalised at the end of the court proceedings when the issue of costs is determined.

English position In England, the seminal case of Dunnett v. Railtrack plc established the principle that a party might be penalised at the end of a case as regards costs where it unreasonably refused to participate in a mediation. This principle was fleshed out in Halsey v. Milton Keynes General NHS Trust , the Court of Appeal setting out a non-exhaustive list of factors which were relevant to the question of whether the party had unreasonably refused to mediate: (a) the nature of the dispute; (b) the merits of the case; (c) the extent to which other settlement methods have been attempted; (d) whether the costs of the ADR would be disproportionately high; (e) whether any delay in setting up and attending the ADR would have been prejudicial; and (f) whether the ADR had a reasonable prospect of success.”

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[2006] EWHC 12 (QB).

[2003] EWCA Civ 915.

[2002] EWHC 1051 (Ch).

[2004] 4 All E.R. 942.

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to the without prejudice rule. Thus, unless Calderbank letters are used in offering to mediate or both parties consent to the waiver of privilege, privileged correspondence in this regard will not be opened to the court when it comes to assess the reasonableness of a refusal. It will often be impossible for the court to judge reasonableness, as a result. For this reason, open offers or Calderbank letters should be used in offering to mediate.

It should also be noted that, as is clear from the quotation from Halsey above, the English courts have placed the burden of proof on the unsuccessful party seeking a costs sanction against the successful litigant to show why there should be a departure from the general rule that costs should follow the event. The court would only depart from this general rule and impose a costs sanction where it was shown that the successful party had acted unreasonably in refusing to mediate. This aspect of Halsey is, however, to say the least, on shaky ground, having recently been criticised in speeches by the Lord Chief Justice Phillips and Sir Gavin Lightman .

Both favoured a more robust attitude that a successful party who refused to attempt mediation should have to justify his refusal if he is to recover his full costs.

Irish position?

In the context of personal injuries actions, s. 16(3) of the Civil Liability and Courts Act 2004 specifically empowers the court to penalise a party in terms of costs where that party refused to comply with an order by the court to mediate. No such provision exists in O. 63A. However, it is submitted that the Commercial Court would be likely to follow Dunnett v. Railtrack if an appropriate case arose. Order 63A, r. 6(2) allows the Commercial Judge, subject to privilege, to direct parties to provide information in respect of any “particulars of any mediation, conciliation or arbitration arrangements which may be available to the parties”. This would seem to contemplate the judge being fully aware of efforts made to mediate. Further, an order adjourning the proceedings pursuant to r. 6(1)(xiii) will usually be in the following terms: “In the event that the said mediation process has not commenced by the xxxx day of xxxx, the court doth direct that a letter be lodged with the court on the said date without prejudice outlining the steps which have been taken to commence the mediation process and stating the reasons for which the said process was not commenced.”

The decision in Dunnett was based on the “overriding objective” of “active case management” of the English Civil Procedure Rules, as set out in rule 1.4, including “encouraging the parties to use an alternative dispute resolution procedure if the court considers that appropriate and facilitating the use Lord Chief Justice Phillips, Alternative Dispute Resolution: an English viewpoint (Made in Delhi on the 29th March, 2008). Summarised in Tony Allen, Whither Halsey – or will Halsey wither? A passage from India (Available on www.cedr.com).

Gavin Lightman, Mediation: An approximation to justice (available at www.cedr.com).

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of such procedure”. Clearly, the Commercial Court shares a very similar overriding objective. Order 63A, r. 5 empowers the Commercial Judge to “give such directions and make such orders… as appears convenient for the determination of the proceedings in a manner which is just, expeditious and which is likely to minimise the costs of those proceedings”. Indeed in Re Norton Healthcare Ltd.10 Kelly J. stated: “Order 63A of the Rules of the Superior Courts which govern cases in the commercial list seek to achieve precisely the same object as the relevant provisions of the CPR in England; they seek to bring about a just and expeditious trial whilst seeking to minimise cost.”

Thus, it is easy to envisage the court following the English approach in penalising parties who unreasonably refuse to mediate. Indeed, Kelly J. gave a strong indication that he might hand out such sanctions in the following passage from Kay-El (Hong Kong) Ltd. v. Musgrave Ltd.11: “The parties not merely considered mediation as a way of solving their problem but actually proceeded to such a mediation within the permitted time. On foot of the order which I made, I was furnished with a report by the mediator who, unfortunately, had to record that although very substantial progress was made in the mediation she was unable to finalise a solution. I should mention that the mediator expressed the view that the parties came to the mediation in good faith and made genuine efforts to reach a compromise. Such being so the lack of success at mediation carries no costs implication for the litigation.”

The wording of the above quotation raises an interesting question as to how far the court might go in looking into the mediation and whether a party which entered mediation might nevertheless be penalised where its actions at the mediation led to its failure.

Can the court look at the actions of parties in the mediation?

In the above quotation from Kay-El, Kelly J. seems to be suggesting that there may be costs implications where a party’s lack of good faith or genuine effort in a mediation leads to the failure of the mediation. If there are to be such costs implications, the court would have to have a power to look behind the failure of the mediation. In England, it has generally been accepted that, once mediation has taken place, the court will not investigate the reasons for the failure of the mediation. In Halsey Dyson LJ stated: “We make it clear at the outset that it was common ground before us (and we accept) that parties are entitled in an ADR to adopt whatever position they 10 Unreported, High Court, Kelly J., 1st December, 2005.

11 Unreported, High Court, Kelly J., 2nd December, 2005.

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wish, and if as a result the dispute is not settled, that is not a matter for the court. As is submitted by the Law Society, if the integrity and confidentiality of the process is to be respected, the court should not know, and therefore should not investigate, why the process did not result in agreement.”12 That view would appear to confirm that such a situation would not fall within one of the exceptions to the without prejudice rule, and thus the actions of the parties in the mediation could not be assessed by the court, in the absence of waivers of privilege from all parties. Further, in England, the courts have been generally unwilling to impose a duty of good faith in negotiations. In Walford v. Miles13 Lord Ackner stated: “[T]he concept of a duty to carry on negotiations in good faith is inherently repugnant to the adversarial position of the parties when involved in negotiations.”

However, in the United States, in Gee Gee Nick v. Morgan’s Foods Inc.14 a defendant who refused to make a written submission and send a representative with authority to settle was held to have acted in bad faith in the mediation and received monetary sanctions as a result. A different approach is often taken at state level. In Foxgate Homeowners’ Association Inc. v. Bramalea California Inc.15 a lawyer for one of the parties attended the mediation without his client and without experts. The California Supreme Court held that, save in exceptional circumstances, conduct in the mediation could not be disclosed by the mediator to the court.

In Australia, as discussed below, the courts, under various statutory provisions, have a jurisdiction to compel parties to attend mediation. Along with this power, the parties are also obliged to participate in good faith.16 Many states in the U.S. require a neutral statement in relation to a failed mediation to be made. For instance, in Ohio the parties must file a report with the court giving details of any agreement reached, but not disclosing what was discussed during the mediation. In California, the mediator has to complete a Statement of Agreement or Non-Agreement, which identifies the mediator, the date(s) of the mediation, the time spent in mediation and whether it ended in settlement. Where a mediation did not take place, the mediator can tick a box stating that a party who was ordered to appear at the mediation did not appear, or a box marked “other reason”. Such standard forms limit the extent of the information a mediator could be forced to provide and protect the all-important trust that must exist between mediator and party, as well as the confidentiality of the process. The neutral summary never extends to evaluative feedback.

Leading commentator, Arthur Marriott, has expressed 12 13 14 15 16

Ibid., at para. 14.

[1992] 1 All E.R. 453.

270 F.3d 590 (8th Cir. 2001).

26 Cal. 4th, 1 (2001).

See, for example, Idoport Pty Ltd. v. National Australia Bank Ltd. [2001] N.S.W.S.C. 427.

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concern that analysing the conduct of the parties in a mediation might be a step too far for the court: “The problems are obvious: how can a court properly assess who was unco-operative in an ADR process?

Are parties, who stand firm in a principled way and do not change their position significantly, to be regarded as recalcitrant? Who is to tell the judge? Do cost sanctions, where imposed by the mediator or by a court following the mediator’s report, damage the integrity of the process? I am coming increasingly to the view… that this is an area in which it may be too dangerous for the courts to trespass.”17 This concern is echoed by the Law Reform Commission in its Consultation Paper on Alternative Dispute Resolution.18 In addition, the Commission expresses concern that such examination of conduct at mediations may only lead to further costly “satellite litigation”.19 These are valid concerns. If a report from the mediator is to be required, perhaps the U.S.-style neutral statement is as much as the courts should require.20 A similar system has been adopted in the context of personal injuries actions, in the Civil Liability and Courts Act 2004. In s. 16(1) of that Act the mediator is required to submit a report to the court setting out “a statement of the reasons as to why [the mediation] did not take place”. Such a report limits the knowledge of the court to the issue of why the mediation did not take place.

However, it may leave a little too much room for evaluation on the part of the mediator. For instance, if a mediator cancelled a mediation because, as in the Foxgate case above, a lawyer turned up to the mediation without his client or experts, the s. 16(1) report might leave it open to the mediator to put this down as the reason the mediation did not take place.

In terms of the Commercial Court, the passage from Kay-El above should be put into context. Kelly J. at that time tended to require a report from the mediator on the mediation. Kelly J. appears to have moved away from this practice. He is generally now satisfied with the letters that will be lodged by the parties with the court updating the court on progress in the dispute.

Compulsory mediation It is clear from the provisions of order 63A and from the discussion of the caselaw above that the Commercial Court has a role in encouraging resolution of disputes through mediation. However, does the court have a further jurisdiction to compel unwilling parties to enter mediation?

English position In Halsey the Court of Appeal held that parties could 17 Arthur Marriott, Mandatory ADR and Access to Justice (2005) 71 Arbitration 4, at p. 313.

18 (LRC CP 50 - 2008), at paras. 11.29 to 11.32.

19 Ibid., at para. 11.27 20 Indeed the Law Reform Commission, in its Consultation Paper, provisionally recommends that mediators’ reports be restricted to neutral summaries of the outcome. See para. 11.78.

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not be compelled to mediate. The court was of the view that the essence of ADR procedures, and in some cases the key to their effectiveness, was the fact that they were voluntarily entered into by the parties. The court also found that mandatory references would infringe Article 6 of the European Convention on Human Rights, as they would be “an unacceptable obstruction on [the parties’] rights of access to the courts”.

That aspect of the decision in Halsey has been the subject of vigorous criticism from commentators, and even members of the judiciary21, in England. One leading commentator made the following comments on the first ground for that decision: “[T]hat conclusion is wholly inconsistent with the experience in the United States, Canada and Australia, where the key to effectiveness of ADR is precisely that references are mandatory and where experience shows the same level of satisfaction with the result of the process by litigants, whether they voluntarily agreed, or were compelled to go to it.”22 On the second ground, that compulsory mediation would infringe article 6, that commentator stated: “[I]t is a nonsense to say that a requirement that a party must go to mediation, not in lieu of a formal adjudication, but before a formal adjudication by a judge, is a contravention of the right of access. If it is in the public interest to promote the settlement of cases, if the right of access is preserved and if there is a crisis in the civil justice system, which means that access to justice is being effectively denied, then it cannot be unjust to require parties to mediate before they can get a formal and binding adjudication by a judge. Human rights and access to justice are not concepts peculiar to England and Wales. The American, the Canadians and the Australians do not feel that human rights are being breached by mandatory references. They all have a right of access to the courts. But to the contrary, they feel that access to justice is being improved by mandatory mediation.”

It is difficult to argue against this viewpoint. Mediation is not a stand-alone alternative to litigation which prevents access to the court. A party, even where compelled to enter mediation, is always free to quit the process if it feels it is going nowhere and continue on with the litigation safe in the knowledge that its decision to withdraw will be kept from the court unless both parties waive confidentiality in that regard. The right of access to court remains in place and the only real effect on the proceedings might be a short delay. Compelling a party to go to a mediation is not the same as requiring them to

21 For example, Sir Gavin Lightman, Mediation: An approximation to justice and Sir Anthony Clarke, The Future of Civil Mediation (both available at www.cedr.com).

22 Arthur Marriott, Mandatory ADR and Access to Justice (2005) 71 Arbitration 4, at p. 314.

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continue attending a mediation or, indeed, requiring them to resolve the dispute through mediation.

It would appear likely that this aspect of Halsey will be overruled in the near future. It has been pointed out by numerous commentators that the main authority cited by the court in Halsey on the article 6 point, Deweer v. Belgium23, is not applicable to mediation. Furthermore, it has been suggested that the Court of Appeal’s views on compulsory mediation in Halsey were, in any event, obiter dicta and English judges would thus be free to make ‘ADR orders’.

A strong indication of the route the English courts might take on this issue was given by Lord Phillips, the Lord Chief Justice, in a recent speech.24 Having analysed Halsey, and agreed with the criticisms set out above, he reached the conclusion that to order ADR on pain of contempt of court, or having an action or defence struck out as25 a sanction, would probably offend article 6, but that facing a mere costs sanction for refusal would not constitute a breach of article 6. Lord Phillips summed up his view as follows: “Litigation has a cost, not only for the litigants but for society, because judicial resources are limited and their cost is borne – at least in part – by the State. Parties should be given strong encouragement to attempt mediation before resorting to litigation. And if they commence litigation, there should be built into the process a stage at which the court can require them to attempt mediation – perhaps with the assistance of a mediator supplied by a court.”

Thus it is highly possible that the English courts will move in the direction of jurisdictions such as Australia in ordering mediation against the wishes of one or more of the parties.

The Australian courts have such a power under various statutory provisions, for instance the New South Wales Civil Procedure Act 2005. However, referral to mediation only follows a screening process by the court where the circumstances of the case are considered.

Irish position?

Again, the Civil Liability and Courts Act 2004 goes further than O. 63A in this regard. It provides for a form of compulsory mediation in the context of personal injuries actions. Section 15(1) empowers the court, “upon the request of any party”, to “direct” that the parties attend a mediation conference. Clearly then, the issue will not arise if neither party wishes to mediate, but if one party does wish to mediate and the other does not, the court may compel the unwilling party to attend a mediation.26 Order 63A contains 23 [1980] 2 E.H.R.R. 439.

24 Lord Chief Justice Phillips, Alternative Dispute Resolution: an English viewpoint (Made in Delhi on the 29th March, 2008). Summarised in Tony Allen, Whither Halsey – or will Halsey wither? A passage from India (Available on www.cedr.com).

25 For an excellent analysis of various compulsory or quasicompulsory mediation schemes in other jurisdictions, see Chapter 3, Part B of the Law Reform Commission’s recent Consultation Paper on Alternative Dispute Resolution (LRC CP 50 - 2008).

26 See Nolan, Mediation and the Civil Liability and Courts Act 2004 (Bar Review, 2008, Vol. 6, p. 132) for a discussion of the test applied

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no such provision and the question of whether or not the Commercial Court has a jurisdiction to compel a party to go to mediation has not yet been given judicial consideration.

Any such consideration will undoubtedly focus on the terms of O. 63A. If the English courts find that they have a jurisdiction to compel parties to mediate under the CPR, it is easy to see O. 63A, informed as it is by similar intentions and objectives, being interpreted in a similar manner. While r. 6 of that order states that the judge “may” adjourn the proceedings to allow the parties time to consider mediation, it is expressly stated to be “without prejudice to the generality of rule 5”. In an appropriate case, the Commercial Judge might consider an order compelling the parties to attempt mediation as being, under the terms of r. 5, “convenient for the determination of the proceedings in a manner which is just, expeditious and likely to minimise the costs of [the] proceedings”. Kelly J. has in the past interpreted r. 5 as giving him a broad range of powers.

However, given the seriousness with which directions in the Commercial Court are generally taken, it may be that this is not an issue which will arise in the near future. It would be a brave litigant that would outright refuse to at least attempt a mediation following a suggestion to that effect by Kelly J, particularly given the potential costs implications.

Can mediation be compelled on foot of an agreement to mediate?

In Cable & Wireless plc v. IBM UK Ltd.27 the contract the subject of the dispute between the parties contained a clause that specifically referred disputes to mediation. Despite the fact that the clause was vague in terms of the nature of the procedure that should be used (other than referring broadly to CEDR rules), it was nevertheless found to be contractually enforceable. The court ordered a stay of the proceedings on the following basis: “…where there is an unqualified reference to ADR, a sufficiently certain and definable minimum duty of participation should not be hard to find… The reference to ADR is analogous to an agreement to arbitrate. As such, it represents a free-standing agreement ancillary to the main contract and capable by the High Court in McManus v. Duffy (Unreported, High Court, Feeney J., 4th December, 2006) when ordering mediation under s.

15(1).

27 [2002] 2 All E.R. 1041 (Comm.)

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of being enforced by a stay of the proceedings or by injunction absent any pending proceedings.”

Cable & Wireless appears to have distinguished the case of mediation clauses from general agreements to negotiate, which are not enforceable under English law (a principle set down by the House of Lords in Walford v. Miles28 and followed by Laffoy J. in Triatic Ltd. v. Cork County Council29).

The judgment fits neatly with the role of the court under the CPR, and in this jurisdiction under O. 63A, to encourage mediation. It must be likely that if Irish companies include clearly worded dispute resolution clauses in their commercial agreements the court will facilitate their enforcement. Indeed, Keane C.J. has already hinted at this in obiter comments made in Re Via Net Works (Ireland) Ltd.30 Clearly, as mediation is a non-binding procedure, all such a clause can do is to require the parties to attempt to resolve any dispute through mediation. In contrast, an arbitration clause can require parties to abide by any award made and thus may exclude or at least delay the involvement of the courts in determining a dispute. An agreement to mediate may be part of a “tiered” or “escalator” ADR clause setting out a series of steps forming a dispute resolution process. In such structures the resolution processes normally increase in formality as each step fails – thus, for instance, mediation might follow a negotiation stage. If no resolution is reached, the only recourse may be litigation. Such ADR clauses are effective as the issue of proceedings too early in a dispute may drive out certain settlement possibilities which were not achievable in informal negotiations but may have been achieved in mediation.

Conclusion It is far from clear where the limit lies in the role of the courts in encouraging the resolution of commercial disputes through mediation. The courts are rightly protective of the integrity of the mediation process and the principles on which it is based. If these are sacrificed in the pursuit of the ADR agenda then the promising development of the use of mediation may be stifled. This important consideration must be balanced against the reality that this form of dispute resolution remains underused and requires to be strongly promoted when suitable. ■

28 [1992] 1 All E.R. 453.

29 [2006] IEHC 111.

30 [2002] 2 I.R. 47, at p. 58.

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Case Law on the Mental Health Act 2001 Part 2 Niall Nolan BL This article is the second installment of a two part article discussing case law pertaining to mental health tribunals.

Introduction Considerable assistance and guidance has been provided by the High and Supreme Court as to both how particular provisions of the Mental Health Act 2001 Act should operate and in relation to what is expected professionally of the various persons, be they lawyers, doctors, tribunal members or personnel working in the Mental Health Commission, in the context of the discharge of their statutory responsibilities.

Some of the judgments have highlighted problems with the processes resorted to, which consequentially –and in the absence of an available, dedicated and expeditious alternativehave had the significant and practical effect of bringing about changes to some of the documentation required to be completed by consultant psychiatrists and others, in order to make the commencement and management of involuntary detentions conform with the intent and import of the Act. Duration of Involuntary Admission and Renewal Orders Recent decisions which dealt with issues such as when orders have effect and for how long include M.D. v. The Clinical Director of St. Brendan’s Hospital & Ors (Unreported Supreme Court, 27th of July 2007), J.B. v. Director of the Central Mental Hospital & Ors (Unreported High Court, 15th of August 2008) and AMC v. St, Lukes Hospital, Clonmel (Unreported High Court, 28th of February 2008).

In considering the issue of when a renewal order came into effect, the Supreme Court (per Hardiman J. delivering the unanimous judgment) in dismissing the applicant’s appeal, endorsed the following finding of the High Court (per Peart J.): “It seems to me that there is a clear sequencing of events contemplated by the terms of Sections 14, 15, 17 and 18 of the Act. Various periods of detention and extensions of detention are provided for, and none of these periods can be seen as overlapping.

Each new period of detention commences upon the expiry of the previous period. Each period of detention is required to receive a review also, and it does not seem to me to be contrary to anything Page 42

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stated in the sections under scrutiny, or the plain meaning intended by the Oireachtas, to conclude that an order renewing an admission order may for any reason be made a day or some days or at anytime in fact before the review of that admission order has been completed, since the renewal order would take effect only at the conclusion of the specified twenty-one day period following the making of the admission order” The proceedings in J.B. v. Director of the Central Mental Hospital & Anor constituted the third occasion that the applicant challenged the basis for his detention before a High Court and was the occasion on which he was successful. The issue before Mr. Justice Sheehan was whether or not the terms of Section 18(4) of the 2001 Act effectively enabled a Mental Health Tribunal to extend the time for which a renewal order remained effective. In this regard, the Court determined the issue in the following terms: “When a renewal order is made, the Mental Health Tribunal is obliged to review same and make a decision as soon as may be but not later than 21 days after the making of the renewal order. The period of 21 days may be extended by 14 days either of it’s own motion or at the request of the patient concerned and by a further 14 days on the application of the patient if the tribunal is satisfied it is in the interest of the patient.

In this case the hearing was adjourned on two occasions. Mr. McDermott B.L. for the first named Respondent has urged the Court to take a wide view when it comes to interpreting the Mental Health Act 2001 and has urged the Court to hold that when a renewal order is made within an extended time period, the detention period is implicitly extended by that amount of time.

Having considered s.18(4,) the Court holds that the purpose of this section is to assist the Mental Health Tribunal in doing it’s work in a meaningful and fair way, and that the purpose of allowing a hearing to be adjourned is essentially to give to the Mental Health Tribunal further time when such is required to enable it to do it’s work properly.

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understandably unavailable and the matter had to be adjourned. That is the purpose of Section 18(4). The Court takes the view that it would be going too far if it were to import into that section the implication that the adjournment, or further adjournment, allows the Court to take the view that the order for renewal is extended in that way.”

The decision in AMC put beyond doubt that a Mental Health Tribunal must review a renewal order within 21 days of the making of such an order, that is to say, the date the Form 7 is signed by the responsible consultant psychiatrist.

In S.M v. The Mental Health Commissioner & Ors,(Unreported High Court, 31st October 2008) the question that troubled the Court was whether or not, when the consultant psychiatrist was authorized to make renewal orders pursuant to Section 15 of the Act for periods not exceeding 3 months, 6 months or 12 months, did he or she have the power to make a renewal order stated to be for periods not exceeding 3 or 6 or 12 months without fixing more definite periods. The respondents argued that in the case that a period “not exceeding twelve months” when signed off on by a responsible consultant psychiatrist means that the renewal order is for a definitive period of 12 months. Mr. Justice McMahon did not accept this proposition holding, “This is an extraordinary proposition and would clearly not be in the interests of the patient where for example a consultant psychiatrist who was of the opinion that detention for a shorter period (e.g. three weeks to complete a course of medication or therapy) was appropriate would not be permitted to make a renewal order for less than twelve months”. His ultimate conclusion was put in the following terms, “I am of the view that a renewal order made under subs. (2) and (3) of s.15 and which does not specify a particular period of time, but merely provides that it is in order for a period “not exceeding 12 months” is not an order permitted under the legislation and is void for uncertainty”. It followed as a consequence that there was no legal basis for the detention of the patient.

This decision is noteworthy in a number of respects, not least because of the manner in which the Oireachtas, on notice of the predicted outcome, guillotined through the Mental Health Act 2008 in order to regularize the position of patients who at the time were involuntarily detained. It is also noteworthy with what it had to say regarding the limitations of any purposive paternalistic approach to interpretation. The following statements refer, “The legislative discretion left to the consultant translates into uncertainty for the patient”, “It must be remembered that what is at stake here is the liberty of the individual and while it is true that no constitutional right is absolute, and a person may be deprived of his/her liberty “in accordance with law”, such statutory provisions which attempt to detain a person or restrict his/her liberty must be narrowly construed”. “The approach to an interpretation of the section should be that which is most favourable to the patient while yet achieving the object of the Act.” This case is of further significance from the point of view of the limitations it places on the ability of Respondents to plead acquiescence/issue estoppel type arguments against Applicants moving pursuant to judicial review and Article 40 of the Constitution. A belief had arisen that further to certain dicta in the aforementioned WQ case, failure to raise Bar Review April 2009

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certain points before Mental Health Tribunals, somehow foreclosed the opportunity to litigate points before the High Court. Although the exceptional and particular circumstances of WQ did result in the view of Mr. Justice O’Neill that the application for release should be dismissed, the judgment (certain dicta therein expressly making the point) and further cases make it quite clear that each case turns on it’s own facts and that the constitutional jurisprudence is well settled against a practice that precludes, on something akin to a fixed rule approach, access to the High Court in order to make complaint in relation to something as fundamental as an individual’s right to liberty. It is in this context that the SM decision is of further significance as it traces and analyses how the acquiescence doctrine should be properly applied, in the process making reference to the decision of the Supreme Court in A. v. Arbour Hill Prison, with particular reference to litigation under the Mental Health Acts.

Criteria for Involuntary Admission (“Mental Disorder”) The substantive conditions precedent to involuntary detention are findings that individuals are suffering from mental disorders within the meaning of the Act. In the aforementioned MR case and in T O’D v. Harry Kennedy & Ors (Unreported High Court, 25th of April 2007, Mr. Justice Charleton), the requirements of Section 3, in which the definition of mental disorder appears, were discussed in detail. In T O’D Mr. Justice Charleton stated as follows: “It is when a person suffers from a mental disorder that the rest of the Act may be operated. As O’Neill J. stated in M.R. v. Byrne (High Court, Unreported, 2nd March, 2007), this section is of critical importance as it establishes the benchmark against which all forms of mental illness must be assessed before an admission order or a renewal order can be made.

These orders have the result of detaining persons against their will.”

Charleton J. then adopted the analysis of O’Neill J. at pages 15 to 18 of his judgment in Byrne: “As is clear from this section there are two separate bases upon which “mental disorder” can be established. The first of these is as set out in s. 3(1)(a) and it is where the Mental Illness, severe dementia or significant intellectual disability is such that there is a serious likelihood of the person causing immediate and serious harm to himself or herself or to other persons. The second basis is where the severity of the mental illness, dementia or disability is such that the judgment of the person concerned is so impaired that a failure to admit the person would be likely to lead to a serious deterioration in his or her condition or would prevent the administration of appropriate treatment that could be given only by such admission and that the reception, detention and treatment of the person concerned in an approved centre would likely to benefit or alleviate the condition to a material extent.

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I am quite satisfied that these two bases are not alternative to each other and indeed it would be probable in my view that in a great many cases of severe mental illness there would be a substantial overlap between the two. Thus it would be very likely in my opinion that in a great many cases in which a person could be considered to fall within the categorisation in s. 3(1)(a) that they would also be likely to fall within s. 3(1)(b). To a much lesser extent, it is probable that persons who are primarily to be considered as falling within s. 3(1)(b), would also be likely to have s. 3(1)(a) applied to them.”

The passage referred to in the judgement of O’Neill J. also stressed that the threshold for detention in an approved centre by way of either an Admission Order or a Renewal Order is set high. There must be a serious likelihood of the person concerned causing immediate and serious harm to himself or herself or to other persons and the critical factor which must be given dominant weight is the propensity or tendency of the person concerned to do harm to themselves or others.

Referring to s. 3(1)(b), O’Neill J. said “These elements in s. 3(1)(b)(I) and (II) are in my view clear and self explanatory. It is perhaps worth drawing attention to the fact that in 3(1)(b)(I) there are alternative provisions, namely that the failure to admit to an approved centre be likely to lead to a serious deterioration in the condition of the person or that the failure to admit into an approved centre would prevent the administration of appropriate treatment that could be given only by such admission.

It should be stressed that the foregoing analysis or description of these provisions merely seeks to set out the legal framework of the operation of the statutory provisions. It cannot be over emphasised however that on a daily basis these provisions will have to be operated by clinical experts who within the broad framework set out above have to make clinical judgments, and I would like to stress that it is not intended in this judgment to interfere in the proper realm of clinical judgment or to cut down or limit the proper scope of clinical judgment.”“ Later in his judgement, the role of the Mental Health Commission was summarised in the following terms, “When these orders are made, they are sent to the Mental Health Commission. Their job, in essence, is to monitor such detentions and ensure that the rights of the patient were upheld.”

Responsible Consultant Psychiatrist Somewhat surprisingly, considering the range of responsibilities devolving upon such persons under the Act, this term is not ascribed a particular definition by Section 2, the interpretation section. Of some assistance in the context of detentions pursuant to the operation of Sections 23 and 24 is sub-section 6 of the latter section wherein is stated, Page 44

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“References in this section to the consultant psychiatrist responsible for the care and treatment of the person includes references to a consultant psychiatrist acting on behalf of the first-mentioned consultant psychiatrist”.

Instead it has been left up to the Superior Courts to establish the essence and import of the term.

The starting point is W.Q. v. The Mental Health Commission & Ors (Unreported High Court, 15th of May 2007), where the Applicant complained on a number of grounds that his detention in the Central Mental Hospital was unlawful. A discreet complaint was that the psychiatrist who signed a renewal order did not have the requisite authority to do so as she was attached to a regional catchment area. The Renewal Order, in this case, which purported to renew the detention of the applicant pursuant to s. 15(2) of the Act of 2001, was made by one Dr. O’Leary. It was submitted on behalf of the applicant that Dr. O’Leary had no power to make this order because the power to make a Renewal Order under s.

15(2) is restricted to the “Consultant Psychiatrist responsible for the care and treatment of the patient concerned” and it was submitted that Dr. O’Leary was not the Consultant Psychiatrist responsible for the care of the applicant. In this case, the evidence established that at all material times the applicant was in the Central Mental Hospital and under the care of one Dr. Mohan. O’Neill J. held the detention was invalid, stating: The restriction of this power to the “Consultant Psychiatrist responsible for the care and treatment of the patient” is one of the significant safeguards provided by the Oireachtas in this legislation for the benefit of persons suffering from mental disorder within the meaning of s. 3 of the Act of 2001 and in my opinion a failure to comply with this provision vitiates the lawfulness of a detention based upon a Renewal Order signed by someone who lacked the power to make that order.”

Recently however our Supreme Court has had occasion to consider this particular issue and phrase in the case of M.M. v. Director of the Central Mental Hospital (Unreported Supreme Court, 7th of May 2008).

The case concerned a patient transferred from Cork to the Central Mental Hospital in late 1998, where he has remained since that time. A Dr. Cooney authorised his transfer and indeed signed various orders extending the applicant’s period of detention under the old regime and it was he who was primarily responsible for the management of the patient’s treatment while he was in Cork. It was however incontrovertible that Dr. Cooney was not on the staff of the Respondent Hospital, yet it was he who signed a series of renewal orders under the 2001 Act which gave rise to the complaint before the High Court. Affidavits were sworn by the relevant doctors in the case and cross-examination before the High Court was conducted. It was also the case that both the applicant and the applicant’s family considered Dr. Cooney the psychiatrist most familiar with the case history.

Dr. Cooney gave evidence of his belief that he was “overall responsible”, although not responsible on a “day to day” basis. Notwithstanding this, the Consultant who compiled the independent Section 17 report referred to a Dr. Duffy rather Bar Review April 2009

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than Dr. Cooney as the responsible consultant psychiatrist. In the Article 40 application however, Dr. Duffy gave evidence in the case supportive of Dr. Cooney’s position.

In a unanimous judgment, the Supreme Court decided that through deploying on this occasion an “unorthodox though purposive” interpretation to the word “the” as it appeared in Section 15(2) of the 2001 Act – which it further described as “a somewhat ambiguous piece of legislation”- the phrase “the consultant psychiatrist responsible for the care and treatment of the patient concerned” could cover Doctors Duffy and Dr. Cooney. The judgment also confirmed the position, intimated in earlier cases, that temporary replacement consultants for responsible consultant psychiatrists of particular approved centres, be the latter unavailable through illness or holidays for example, could also come within the definition posited.

In it’s review report, the Commission has committed itself to exploring how greater clarity can be provided to the term but from the cases however it can be gleaned that applications before the Superior Courts will turn on the facts particular to the case. Necessarily consultants purporting to claim the title of the responsible consultant psychiatrist must still satisfy a qualification requirement and a threshold for involvement and familiarity with issues surrounding a patient’s involuntary detention.

Other litigation Currently before the Superior Courts are a number of cases awaiting resolution. They concern such diverse issues as what party in proceedings should lawfully bear the burden of establishing whether a patient is suffering from a mental disorder on an appeal before the Circuit Court and the lawfulness of engaging a private contractor to remove persons to approved centres purportedly pursuant to Section 13(2) of the 2001 Act after recommendations for an involuntary admission has been made.

On this last point, mention might be made of R.L. v.

Clinical Director of St. Brendans & Ors (Unreported High Court, 17th of January 2008, Feeney J. and Unreported Ex-tempore Supreme Court 15th of February 2008) and E.F. v. Clinical Director of St. Ita’s Hospital & Ors (judgment currently reserved, O’Keefe J.). Both cases involved challenges to the activities of a private contractor, engaged by the HSE to remove persons from the community to hospitals (an “assisted admissions service”), purportedly pursuant to Section 13 of the 2001 Act. It appears resort was had to private operators by Hospital managers in order to overcome the impasse constituted by the lengthy industrial relations dispute involving HSE management and psychiatric nurses. In L, the argument canvassed was that as the private operator could not be deemed a member of staff, therefore the removal of the patient by such undertaking was unlawful. The patient brought an Article 40 application seeking her release, however the Superior Courts never embarked on an examination of the substance of the complaint as they determined that the appropriate remedies were achievable through a Judicial Review application and/or a claim for compensation.

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recently litigated in E.F. along with a plethora of other issues, both substantive and procedural, and judgment is awaited.

Of further note in this regard and a fact that highlights concerns and misgivings expressed over the manners in which such removals are currently occurring is firstly the fact that the Mental Health Commission has established a committee to examine issues connected with the implementation of Section 13 and is recommending as a priority further consultation with relevant parties “to ensure patients’ rights are safeguarded throughout the involuntary admission”.

Two further Article 40 cases of note in the particular area of the transferring of patients between approved centres are J.B. (No.2) v. The Director of the Central Mental Hospital & Ors (Unreported High Court, 15th of June 2007) and B v.

The Clinical Director of Our Lady’s Hospital Navan & Ors (Ex tempore judgment of Sheehan J., 5th of November 2007).

In B, Mr. Justice Sheehan accepted as lawful a renewal order signed by a consultant psychiatrist in the approved centre to which the patient had been transferred despite Section 21(4) stating that, “the detention of a patient in another approved centre under this section shall be deemed for the purposes of the Act to be detention in the centre from which he or she was transferred.

In D.H. v. The President of the Circuit Court & Ors (Unreported High Court, 30th of May 2008), the subject matter case involved appeals lodged to the Circuit Court from determinations of Mental Health Tribunal affirming admission and renewal orders and the operation of Section 19 of the 2001 Act. By the time the appeals came on for hearing, the applicant/appellant had improved and was no longer involuntarily detained in an approved centre. Nonetheless, he still wished to pursue his appeal. Any such appeal centres exclusively on whether at the time of the hearing, the patient is or is not suffering from a mental disorder. In circumstances where the detaining orders were discharged however, the President of the Circuit Court considered matters moot. A judicial review application was moved. Mr. Justice Charleton, while deploring the time it took to have appeals heard before the Circuit Court stating that they should be with as promptly as possible, nevertheless determined that the “Circuit Court has no jurisdiction to decide any such appeal unless the person is then the subject of an admission order or a renewal order, and is thus detained in a hospital”.

While the aforementioned Commission’s report on the operation of the Act makes no recommendation on expediting the appeal process, it is to be hoped that it will reconsider this issue in light of the express entreaties of the High Court.

In Z v. Khattak & Anor,(Unreported, 28th of July 2008), Mr. Justice Peart refused to direct the release of the applicant.

His core findings were to the effect firstly, that he was not satisfied that the fact that a process to detain had been initiated further to the provisions of Section 12 precluded matters from ultimately proceeding further under Section.9. He held that alternative procedures were available. Secondly, while expressing disquiet and concern about the appropriateness of an examination of the applicant - conducted by a retired doctor (who after his retirement had continued to act for Gardai) and which led to him making a recommendation for the detention of Z – which was conducted by having a “chat” for two minutes with the Applicant at the rear Page 45

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of a Garda station while smoking cigarettes and where following evidence, it appeared the doctor did not have any knowledge of the precise requirements specified in the Act for such an examination, the Learned Trial Judge concluded that, “..nevertheless one cannot discount completely the probability that Dr. W’s thirty years experience as a general practitioner and his later experience of examining patients in a Garda Station, enables him to reach the necessary conclusions, for the purpose of making this recommendation, quite rapidly both from observation and conversation with the person, armed as he was, and was entitled to be, with necessary background information provided to him by the applicant’s brother and Sgt. Reynolds at the time.” Two final findings were that a delay of some seven and a half hours between the applicant’s arrival at the hospital and his examination by a consultant psychiatrist for the purpose of making an admission order complied with the requirement in Section.14 that such an examination be carried out “as soon as may be” and finally that a breach of the requirement in Section.16 to send a copy of the admission order to the Commission within 24 hours did not affect any right of the applicant in any fundamental way or at all.

Conclusion It is clear from the above case-law that considerable assistance and guidance has been provided by the High and Supreme Court as to both how particular provisions of the Mental Health Act 2001 Act should operate and in relation to what is expected professionally of the various persons, be they lawyers, doctors, tribunal members or personnel working in the Mental Health Commission, in the context of the discharge of their statutory responsibilities. Indeed some of the judgments have had the practical effect of resulting in

changes to some of the forms which require completion by consultant psychiatrists in order to lawfully implement the Act, and this is but one of a number of tangible benefits brought about by the litigation.

Finally, the judgments also acknowledge the real challenges, ethical, professional and otherwise faced by all those called upon to discharge statutory duties under the Act. Putting this in context however, Mr. Justice Charleton commented in T O’D: “These provisions are exacting and complex. They were designed, however, by the Oireachtas in order to replace the situation whereby it was potentially possible for a person to be certified and detained in a mental hospital and then forgotten. The need for periodic review and renewal, and the independent examination of these conditions is not a mere bureaucratic layer grafted on to the previous law for the treatment of those who are seriously ill and a danger to themselves and others: it is an essential component of the duty of society to maintain the balance between the protection of its interests and the rights of those who are apparently mentally ill” In total, the Mental Health Commission makes 28 recommendations in relation to the operation of the 2001 Act at the conclusion of it’s review report, a report which any person working in the area would derive considerable benefit from reading. Far-reaching recommendations are made, dedicated to the aim, as the Commission Chairman puts it, of “respecting and promoting the human rights of the service user” which he concludes, “must continue to be the principle underpinning future actions and developments”. ■

Launch of “Legal Offaly”

The book “Legal Offaly”, by Michael Byrne Solicitor, was launched recently at the Tullamore Courthouse. The work provides a detailed background to the development of the legal profession in County Offaly including the old Home Circuit and the present day Midland Circuit. Pictured at the launch are: Michael Byrne of Hoey and Denning Solicitors, Tullamore; P. J. Fitzpatrick, the then CEO of the Courts Service; Pat Gallagher Offaly County Manager; Mrs Mary O’Gorman (widow of the late Patrick O’Gorman, county registrar Offaly 1971-2001), His Honour Judge Anthony Kennedy, Judge of the Circuit Court; Verona Lambe, Offaly County Registrar.

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Pupil Exchange in Paris Ann Campbell BL When I first applied for the pupil exchange programme in Paris and learned that it entailed two months participation in the ‘Stage International’ conducted by the Paris Bar I was excited about the opportunity of immersing myself in a completely different legal system. Two months is of course only long enough to glean something of an overview of an entire legal system but seeing the French system in action undermined many of my assumptions concerning the universality of certain of our legal practices and principles.

The firm I worked in practised almost exclusively criminal law and therefore one of the most striking differences that I encountered was in that domain. French law permits an accused to be charged and convicted of a crime in absentia.

Together with the ordinary limitation periods within which a crime must be prosecuted, French law contains a second set of limitation periods governing the time limit within which a sentence which has already been imposed must be carried out. In this way a suspect who cannot be located can nonetheless be convicted and sentenced. If he is later found, that sentence can be executed at any stage within the period set out in legislation. For the most serious crimes such as murder or rape, a sentence can be executed up to 20 years after it is imposed.

Since the trial can therefore be carried out without the accused’s participation or even knowledge, my immediate thought was the question of audi alteram partem and the rights of an accused, including to speak in his own defence.

The French approach is to allow an individual who has been convicted in this manner and is later apprehended to have his case re-tried in a completely de novo hearing. The parties and judges (there are three judges in the higher criminal courts) do however have full access to the original proceedings and judgment.

One of the main purposes of limitation periods of course is to ensure that a case is tried while the evidence is relatively fresh. Surely then a re-trial, potentially held up to 20 years after the original, is automatically held on a weaker basis. The lawyers I spoke to from France and other civil law jurisdictions did not seem to find this concept as shocking as I. However, I was informed that there has been some debate in France concerning the legitimacy of such extensive limitation periods.

There is also the question of the efficacy of conducting an entire hearing for a second time, including witness examinations and arguments from counsel not just for the prosecution and defence but also for each victim (victims are represented in French criminal trials and can apply during the same proceedings for monetary compensation - a practice

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which, in my opinion, deserves serious consideration in this jurisdiction). Perhaps this idea makes more sense in the French system where criminal cases are almost never brought to court unless a conviction is practically a certainty.

Also, the trial itself tends to focus more on the accused’s motives (based on his personality, background etc.) and on establishing the details of how the crime was carried out in fact rather than on technical legal argument or how the case was processed? In practice, the three criminal trials I witnessed more closely resembled sentencing hearings than the trials with which we are familiar here.

The Stage included lectures on and a visit to the Conseil d’Etat which is known as the chief watchdog of the validity of French laws. I was particularly interested to learn of a new reform that was passed in July 2008 which allows individuals to challenge the validity of a law before that court on the grounds, inter alia, that it is unconstitutional or infringes their fundamental human rights. This Conseil d’Etat, under certain conditions, previously had the power to pronounce a Bill as constitutional or unconstitutional before its enactment into law. But, prior to this reform, once a law was published, there was no domestic legal recourse to challenge its validity. Until last July, this was not considered to be a judicial function. Unfortunately, at the time I was in Paris, the necessary secondary legislation had not yet been put in place to clarify how the Conseil d’Etat was expected to function in practice. All of my inquiries in this regard were met with shaking heads and shrugging shoulders. Apparently this reform, which appears to represent a substantial shift in the balance of powers between State organs and has the potential to resemble to some extent our long-established judicial review system, is so novel in France that practitioners remain somewhat ‘bouleversé‘ and at a loss.

Increased understanding of alternative methods to address the common aim of developing a legal system which adequately serves the needs of modern society is an essential element in the continuing evolution of our own system. While the pupil exchange programme merely provides a glimpse into the French approach, it is enough to ignite an interest and dialogue on matters which would otherwise go unnoticed.

It has also been an invaluable experience to me personally and I wish to strongly encourage anyone with any curiosity about the wider legal world to consider participating. Many thanks are due to Turlough O’Donnell SC, the Bar Council, the Barreau de Paris and, in particular, Inga Ryan and Madame Katrine Lizfranc for their extensive work in ensuring the success of the exchange. ■

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Handling Stolen property John Maher BL Gardai who mount surveillance of stolen property may inadvertently change the character of the property, so that it is no longer considered “stolen” within the meaning of the Criminal Justice (Theft and Fraud Offences) Act 2001.

In the recent case of The People (DPP) v Caroline Burke in the Dublin Circuit Court, Judge McCartan directed an acquittal, after he ruled that property which had been stolen, but which then came under Garda surveillance, was within the officers’ custody and control at the time of the alleged offence.

The accused had pleaded not guilty to handling stolen property, contrary to Section 17 of the 2001 Act. The prosecution evidence was that on the morning of August 16th 2006, one of the owners of a beauty products company arrived at its warehouse at Donabate, Co. Dublin and found that there had been a break-in overnight. Noticing mud in the doorway, he and a garda searched nearby and found the missing property lying in an adjacent field, hidden under a large metal sheet. Neither touched the goods – some €10,000 worth of beauty products. The garda suggested leaving the products where they were and mounting a surveillance operation, and the owner agreed. As darkness fell, a surveillance team moved into place. Before long, a jeep was seen to stop near a gap in the hedge that led into the field and two men and the accused emerged from the vehicle. The men approached the metal sheet. As soon as they lifted it, the gardaí switched on a powerful beam and moved in. They arrested one man and the second escaped. The accused ran to her jeep but was arrested as she tried to start it.

The defence applied for a direction to acquit on two grounds. Counsel said that taken at its highest, the Garda evidence against the accused placed her in the field but some eight yards from the property. There was no evidence that she had any knowledge that the property was in the field, nor that she was part of any plan to retrieve it. The second ground was that by the time of the alleged offence, the property had lost the character of stolen property. When the garda officer and the owner of the property had discovered it in the field, the property had been restored to the owner at that stage, and it had also come into the lawful possession and custody of the gardaí.

Section 17 (1) of the 2001 Act states that a person is guilty of handling stolen property if (otherwise than in the course of the stealing) he or she, knowing that the property was stolen or being reckless as to whether it was stolen, dishonestly – (a) receives or arranges to receive it, or (b) undertakes, or assists in, is retention, removal, disposal or realisation by or for the benefit of another person, or arranges to do so. Conviction of the offence requires as an essential proof that the property is stolen property at the time the offence is committed.

The court considered a number of authorities and in

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particular Haughton v Smith , Attorney General’s reference (No. 1 of 1974) ,, R v Schmidt , R v Villensky and Metropolitan Police Commissioner v Streeter. Judge McCartan ruled that at the time of the alleged offence, the property was not stolen.

He said the question of what property is capable of being “handled” in the Criminal Justice (Theft and Fraud Offences) Act 2001 was dealt with by Section 20 (3) of the Act which states inter alia that “property shall not be regarded as having continued to be stolen property after it has been restored to the person from whom it was stolen or to other lawful possession or custody.” The learned judge said the operative word was “restoration” and the authorities indicated that what amounted to “restoration” depended on the facts of each case. In this case, the owner and the garda had found the property in the field and agreed to leave the property where it was. At that point the property had come under the control of the owner, who passed it on to the gardaí.

There was no processing of the property by the accused.

Had gardaí delayed their move to apprehend the suspects, he said, the goods might have been moved outside the care and control of the officers.

The learned Judge said that if he was wrong about the character of the property, he still had concerns about the evidence that placed the accused in the field; he said her actions generally were open to differing conclusions and she was entitled to the better interpretation. He added that he recognised it was easy for a judge to say the gardaí had acted too precipitously, but clearly the situation would have been different had the gardaí waited and the property had been taken to the accused’s car. Judge McCartan withdrew the case from the jury and directed them to acquit.

This reasoning might also be seen to apply to possession offences under the Act. One point to note is that had the prosecution proven greater involvement by the accused with the property, it would have been open to the jury to consider a verdict of attempted theft, under the “alternative verdict” provisions of Section 55 of the 2001 Act . In general terms, however, the ruling suggests that in a surveillance operation of this type, officers should either delay making their final move, or devise ways to monitor stolen property without having it within their custody and control. ■

[1975] AC 476.

[1974] 1 QB (744) [1866] LR 1 CCR 15 [1892] 2 QB 597 71 Cr.App.R. 113

Bar Review April 2009

03/04/2009 14:22:03